When can a parent be removed as guardian of a child?

What is Guardianship?

A guardian will have duties, powers, rights, and responsibilities in relation to the children under their guardianship. 

Guardians typically provide day-to-day care for the child; contribute to their intellectual, emotional, physical, social, cultural, and other personal development; and decide, or help make decisions about important matters affecting the child. 

Where a child has more than one guardian, those guardians need to cooperate and consult with each other. 

Who can be a guardian?

In general, parents will automatically be joint guardians of a child where:

1. They are both recorded as parents on the child’s birth certificate; or
2. A mother gives birth while she is in a marriage or a civil union with the other parent at any time between conception and birth; or
3. Where the mother is in a de facto relationship with the other parent, at the time of the child’s birth (where the child was conceived before 1 July 2005); or
4. Where the mother was in a de facto relationship with the other parent, at any time between conception and birth (where the child was conceived before 1 July 2005); or
5. Where the court appoints or declares a parent is a guardian. 

Where a couple is of the same sex, or became pregnant after undergoing an Assisted Human Reproductive (AHR) procedure, different rules will apply. Read more about parenting rights of same sex couples, or couples who relied on AHR procedures (like IFV or donors).

People other than the parents may also be appointed guardians by an order of the court, or in the Will of a deceased parent.  There are different types of guardians.

Read more about how to establish paternity.

How can a guardian be removed?

In some situations it may be necessary to remove a person as a guardian of a child.

An application to remove a guardian may be made by a parent, existing guardian, grandparent, aunt, uncle, siblings (including half-siblings), and a spouse or partner of a parent of the child. Any other person must first ask the Court for permission to make their application.

The situations in which a guardian may be removed are very limited. The guardian must either be unwilling to perform their role, or is “for some grave reason unfit” to continue in their role as a guardian.

A guardian is considered to be unwilling to be a guardian if they do not contribute to the child’s intellectual, emotional, physical, social, or cultural needs, or refuse to make important decisions in the child’s life.

Being unfit may include situations involving child abuse, drugs and alcohol, or other situations that risk the child’s safety in any way (including criminal offending).

However, the court will only make the order if it is in the best interest of the child. The court may also at the time of making an order removing a guardian, appoint another person to replace them.

If there are concerns relating to a child that may require the removal of a guardian, it is wise to speak with a professional experienced in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.