One of the main reasons why people make the effort to prepare or update their wills is to make sure that their infant children are taken care of. The Guardianship of Infants Act 1940 (SA), Section 13 provides each parent of a minor child (under 18 years of age) with the right to appoint a testamentary guardian to take effect on his or her death.
The guardian appointed by one parent acts jointly with any surviving parent unless the surviving parent objects (Section 13(3)). If there is objection the testamentary guardian may apply to the Supreme Court for an order that they act jointly with the surviving parent, or solely (to the exclusion of the surviving parent).
This right can sometimes be affected by the operation of the Family Law Act 1975 (C’th) which states that each parent of a minor child has parental responsibility for that child unless it is displaced by a parenting order (Section 61C). The effect of this is to vest all rights in relation to the guardianship of a child in the surviving parent in the ordinary course. This is inconsistent with the approach under the Guardianship Act but would prevail if there was a conflict.
Section 13(5) of the Guardianship of Infants Act provides that if each deceased parent appointed a testamentary guardian then those guardians act jointly. The testamentary guardians would have the full rights and powers of guardianship in respect of the child (at least in the absence of challenge).
Any appointment of a testamentary guardian can be challenged in the Family Court by anyone concerned with the care, welfare or development of the child. Conversely where one parent dies and the surviving parent assumes sole parental rights over their minor children, a testamentary guardian appointed by the deceased parent has the ability to contest this position in the Family Court.
Notwithstanding the foregoing, we still strongly recommend that a testamentary guardian(s) is appointed in your Will.
You should also consider the appointment of substitute guardians if the primary guardians are unable or unwilling to act or to continue to act. We can discuss with you the various options available to you in appointing appropriate guardians to care for your infant children.
For further information please contact Emma on 8362 6400 or email Emma Marinucci. Join our mailing list to receive updates and advice on current issues.
