{"id":"tas:act-1934-029","name":"Guardianship and Custody of Infants Act 1934","slug":"guardianship-and-custody-of-infants-act-1934","collection":"act","jurisdiction":"tas","status":"in_force","isInForce":true,"actNumber":"29 of 1934","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":110630,"registerId":"tas-act-1934-029-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"### 1 Short title\n\n> This Act may by cited as the [Guardianship and Custody of Infants Act 1934](/view/html/inforce/2026-04-12/act-1934-029) .","sortOrder":0},{"sectionNumber":"2.","sectionType":"section","heading":null,"content":"### 2.\n\n*\\[Section 2 Repealed by 25 Geo. V No. 78 \\]*","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Interpretation","content":"### 3 Interpretation\n\n> > (1)  In this Act the expression ***the Court*** means the Supreme Court.\n> \n> > (2)  The power conferred by this Act to appoint a guardian shall include power to appoint more persons than one to act as guardians; and references in this Act to a guardian shall be deemed to include references to guardians.","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Power of father to appoint guardian","content":"### 4 Power of father to appoint guardian\n\n> > (1)  The father of any infant by deed or will may appoint any person to be the guardian of such infant during the minority of such infant or for any lesser term.\n> \n> > (2)  *\\[Section 4 Subsection (2) amended by No. 21 of 1973, s. 5 and Sched. 1 \\]*The provisions of [subsection (1)](#GS4@Gs1@EN) shall be applicable to an infant born after the death of his father, and the power thereby conferred may be exercised by the father although he is under the age of 18 years.","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Mother to be guardian on death of father","content":"### 5 Mother to be guardian on death of father\n\n> > (1)  On the death of the father of an infant, the mother, if surviving, shall be the guardian of such infant, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by the father.\n> \n> > (2)  When no guardian has been appointed by the father, or if the guardian appointed by the father is dead, or refuses to act, the Court, if it thinks fit, may appoint a guardian to act jointly with the mother.","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Power of mother to appoint guardian in certain cases","content":"### 6 Power of mother to appoint guardian in certain cases\n\n> > (1)  The mother of any infant by deed or will may –\n> > \n> > > > (a) appoint any person to be the guardian of such infant after the death of herself and of the father of such infant, if such infant be then unmarried;\n> > > \n> > > > (b) provisionally nominate any person to act as guardian of such infant after her death jointly with the father, and, if after her death it be shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, the Court may –\n> > > > \n> > > > > > (i) confirm the appointment of such guardian, who shall thereupon be authorized and empowered so to act as aforesaid; or\n> > > > > \n> > > > > > (ii) make such other order in respect of the guardianship as the Court may think right.\n> \n> > (2)  Where guardians are appointed by each parent, they shall, after the death of both parents, act jointly.","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"Power of Court to make orders in case of dispute","content":"### 7 Power of Court to make orders in case of dispute\n\n> In the event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the Court for its direction, and the Court may make such order or orders regarding the matter as it shall think proper.","sortOrder":6},{"sectionNumber":"8","sectionType":"section","heading":"Powers of guardian","content":"### 8 Powers of guardian\n\n> A guardian under this Act shall have, in relation to the person and estate, or to the estate, as the case may be, of the infant concerned, power to –\n> \n> > > (a) institute and maintain proceedings against any person wrongfully detaining or taking away the infant from the guardian's custody or control, and to recover damages in respect thereof to the use of the infant;\n> > \n> > > (b) take into his custody and control the profits of all lands of the infant; the custody and tuition of the infant; and the management of his goods, chattels, and personal estate; and\n> > \n> > > (c) institute and maintain such actions and proceedings in relation to the property of the infant as may be necessary for effectually carrying out any of the powers aforesaid.","sortOrder":7},{"sectionNumber":"9","sectionType":"section","heading":"Power of Court to remove guardian","content":"### 9 Power of Court to remove guardian\n\n> The Court, in its discretion, on being satisfied that it is for the welfare of the infant, may remove from his office any testamentary guardian or any guardian appointed or acting by virtue of this Act and may also, if it shall deem it to be for the welfare of the infant, appoint another guardian in the place of the guardian so removed.","sortOrder":8},{"sectionNumber":"10","sectionType":"section","heading":"Power of Court to make orders as to custody","content":"### 10 Power of Court to make orders as to custody\n\n> *\\[Section 10 Amended by No. 53 of 1957, s. 2 \\]*The Court may, upon the application of the mother or father of any infant (who may apply without next friend), make such order as it thinks fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in any case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just.","sortOrder":9},{"sectionNumber":"11","sectionType":"section","heading":"Guardianship in case of divorce or judicial separation","content":"### 11 Guardianship in case of divorce or judicial separation\n\n> In any case where a decree for judicial separation, or a decree either *nisi* or absolute for divorce, shall be pronounced, the Court pronouncing such decree may thereby declare the parent, by reason of whose misconduct such decree is made, to be a person unfit to have the custody of the children, if any, of the marriage; and, in such case, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children.","sortOrder":10},{"sectionNumber":"12","sectionType":"section","heading":"Power of Court as to production of child","content":"### 12 Power of Court as to production of child\n\n> Where the parent of a child applies to the Court for a writ or order for the production of a child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may, in its discretion, decline to issue the writ or make the order.","sortOrder":11},{"sectionNumber":"13","sectionType":"section","heading":"Power of Court to order repayment of costs of bringing up child","content":"### 13 Power of Court to order repayment of costs of bringing up child\n\n> If, at the time of the application for a writ or order for the production of a child, the child is being brought up by another person, the Court, in its discretion, if it orders the child to be given up to the parent, may further order that the parent shall pay to such other person the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the Court to be just and reasonable, having regard to all the circumstances of the case.","sortOrder":12},{"sectionNumber":"14","sectionType":"section","heading":"Court in making order to have regard to conduct of parent","content":"### 14 Court in making order to have regard to conduct of parent\n\n> Where a parent has –\n> \n> > > (a) abandoned or deserted his child; or\n> > \n> > > (b) allowed his child to be brought up by another person at that person's expense for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties –\n> \n> the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a fit person to have the custody of the child.","sortOrder":13},{"sectionNumber":"15","sectionType":"section","heading":"Power of Court as to child's religious education","content":"### 15 Power of Court as to child's religious education\n\n> Upon any application by the parent for the production or custody of a child, if the Court is of opinion that the parent ought not to have the custody of the child, and that the child is being brought up in a different religion from that in which the parent has a legal right to require that the child should be brought up, the Court shall have power to make such order as it thinks fit to secure that the child is brought up in the religion in which the parent has a legal right to require that the child should be brought up.","sortOrder":14},{"sectionNumber":"16","sectionType":"section","heading":"Saving of power to consult child","content":"### 16 Saving of power to consult child\n\n> Nothing in this Act shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice.","sortOrder":15},{"sectionNumber":"17","sectionType":"section","heading":"Definitions of certain expressions","content":"### 17 Definitions of certain expressions\n\n> For the purposes of [sections 12](#GS12@EN) to [15](#GS15@EN) , the expression ***parent of a child*** includes any person at law liable to maintain such child or entitled to his custody; and ***person*** includes any school or institution.","sortOrder":16},{"sectionNumber":"18","sectionType":"section","heading":"In case of separation deed between father and mother","content":"### 18 In case of separation deed between father and mother\n\n> *\\[Section 18 Amended by 25 Geo. V No. 78 \\]*No agreement contained in any separation deed made between the father and mother of an infant shall be held to be invalid by reason only of its providing that the father of such infant shall give up the custody or control thereof to the mother; but the Court shall not be bound to enforce any such agreement if it is of opinion that it will not be for the benefit of the infant to give effect thereto.","sortOrder":17},{"sectionNumber":"19","sectionType":"section","heading":"Rules as to procedure","content":"### 19 Rules as to procedure\n\n> *\\[Section 19 Amended by 25 Geo. V No. 78 \\]*[*\\[Section 19 Amended by No. 18 of 2008, s. 26, Applied:26 Jun 2008\\]*](/view/html/inforce/2008-06-26/act-2008-018#GS26@EN) The judges, or a majority of them, may make rules for regulating the practice and procedure in any proceedings under this Act.","sortOrder":18},{"sectionNumber":"20","sectionType":"section","heading":"Saving of existing jurisdiction of Court","content":"### 20 Saving of existing jurisdiction of Court\n\n> Nothing in this Act shall restrict or affect the jurisdiction of the Court under any statute or under the *Charter of Justice* to appoint guardians and keepers of infants and their estates.","sortOrder":19},{"sectionNumber":"SCHEDULE 1 - Acts Repealed","sectionType":"part","heading":"SCHEDULE 1 - Acts Repealed","content":"# SCHEDULE 1 - Acts Repealed SCHEDULE 1 - Acts Repealed\n\n[Section 2](#GS2@EN)\n\n| Regnal Year and Number | Title of Act |\n| 38 Vict. No. 8 | Infants' Custody Act 1874 |\n| 51 Vict. No. 5 | Guardianship of Infants Act 1887 |\n| 55 Vict. No. 5 | Custody of Children Act 1891 |\n| 55 Vict. No. 32 | An Act to amend the Guardianship of Infants Act 1887 |","sortOrder":20}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":false,"description":"The legislation appears to maintain its original scope as enacted in 1934. It remains focused on guardianship appointment mechanisms and custody disputes between parents, with amendments (noted in sections 4, 10, 18, 19) appearing to be technical or procedural updates rather than expansions into new substantive areas. The Act has not grown significantly beyond its original purpose of regulating parental rights and court intervention in child welfare matters."},"complexity_factors":["Short statute with only 20 operative sections (excluding repeals)","Minimal defined terms—only 'the Court', 'parent of a child', and 'person' are explicitly defined","Straightforward conditional logic without nested exceptions (primarily 'if-then' structures)","No extensive cross-referencing to other Acts beyond the repealed legislation in Schedule 1","Clear hierarchical structure: appointment of guardians (ss. 4-6), dispute resolution (s. 7), powers (s. 8), removal (s. 9), custody orders (ss. 10-18), procedural matters (ss. 19-20)","Some archaic language ('deed or will', 'writ', 'next friend') but concepts remain accessible","Single amendment history noted but doesn't create interpretive complexity"],"plain_english_summary":"**What this law does:**\n\nThis Act sets out who can make decisions about children (called \"infants\" in the law, meaning anyone under 18) when their parents separate, divorce, or die. It covers two main things: **guardianship** (the legal right to make long-term decisions about a child's upbringing, education, and property) and **custody** (who the child actually lives with day-to-day).\n\n**Key rules:**\n\n* **Fathers can appoint guardians:** A father can name someone in his will or in a legal document to look after his children after he dies. This applies even if the child is born after the father's death.\n* **Mothers become automatic guardians:** When a father dies, the mother automatically becomes guardian—either alone (if the father didn't appoint anyone) or alongside whoever the father chose. If the father's chosen guardian won't act, the Supreme Court can appoint someone to help the mother.\n* **Mothers can also appoint guardians:** A mother can name a guardian to take over after both parents die, or she can nominate someone to act jointly with the father if he proves unfit.\n* **Courts decide disputes:** If guardians disagree about what's best for a child, the Supreme Court can step in and make binding decisions.\n* **Courts can remove unfit guardians:** The Court can fire a guardian and appoint a replacement if it's in the child's best interests.\n* **Parents can apply for custody:** Either parent can ask the Court for custody or visitation rights. The Court must consider the child's welfare first, plus each parent's conduct and wishes.\n* **Special rules for divorced parents:** If a parent is found \"unfit\" due to misconduct in a divorce, they lose their automatic right to custody if the other parent dies.\n* **Religious upbringing matters:** The Court can order that a child be raised in a specific religion if the parent seeking custody has a legal right to demand this.\n* **Children's voices count:** The Court can consider what the child wants, and older children keep their right to make their own choices.\n\n**Who it affects:**\n\nParents, children, appointed guardians, and anyone involved in caring for a child when parents separate or die. The Supreme Court handles all cases under this Act.\n\n**Why it matters:**\n\nBefore this law, fathers had almost exclusive rights over children. This Act gave mothers clearer standing as guardians and created a framework for courts to intervene when families break down—focusing on the child's welfare rather than just parental rights."},"flash_summary":{"complexity_score":5,"scope_assessment":{"changed":true,"description":"The Act has been amended several times since 1934, expanding its scope. Originally, the father had primary power to appoint guardians. Amendments have: (1) given the mother equal rights to appoint guardians and be guardian on the father's death, (2) added court discretion to consider the welfare of the child as paramount, (3) allowed the court to make orders for custody and access on application by either parent, and (4) removed gender-based distinctions. The Act now provides a more balanced framework between parents and greater court intervention."},"complexity_factors":["Cross-references between sections (e.g., sections 12–15 use defined terms from section 17)","Several sections have been amended or repealed (e.g., section 2 repealed, sections 4, 10, 18, 19 amended)","Defined terms: 'the Court', 'parent of a child', 'person' (section 17)","Conditional language: 'if it thinks fit', 'if it is of opinion', 'as it thinks proper'","Multiple scenarios for appointment of guardians (by father, mother, court) with different conditions"],"plain_english_summary":"This Act sets out the rules for who has legal responsibility for children (called 'infants' in the Act). It covers:\n- **Who can be a guardian**: The father can appoint a guardian by will or deed. The mother becomes guardian automatically when the father dies. The mother can also appoint a guardian to act after her death, either alone or jointly with the father.\n- **Court powers**: The Supreme Court can make decisions about custody, access, and guardianship disputes. It must consider the child's welfare, the parents' conduct, and their wishes. The Court can remove or appoint guardians, and make orders about who the child lives with.\n- **Parental conduct**: If a parent has abandoned or mistreated a child, the Court can refuse to return the child to that parent. The Court can also order a parent to repay the costs of raising the child.\n- **Religious upbringing**: The Court can make orders to ensure a child is raised in a religion the parent has a legal right to require.\n- **Children's wishes**: The Court can still consider what the child wants.\nThis Act affects parents, guardians, and children. It matters because it provides a legal framework for deciding who takes care of children when parents cannot agree, or when one parent dies."},"summary":{"complexity_score":3,"scope_assessment":{"changed":true,"description":"The original 1934 Act was intended as a primary mechanism for resolving children's guardianship and custody disputes in Tasmania. Its practical scope has been dramatically narrowed over time by the introduction of the Commonwealth Family Law Act 1975, which now governs the vast majority of parenting and guardianship matters in Australia, leaving this State Act with only residual relevance."},"complexity_factors":["The available text contains almost no substantive legislative content — only metadata and status information — making meaningful legal analysis very limited","Interaction with Commonwealth family law (Family Law Act 1975) creates a potential jurisdictional complexity that readers must navigate","The archaic language ('infants') and 1934 vintage may cause confusion about the law's current relevance and scope","Lack of visible substantive provisions means uncertainty about what the Act actually requires or permits"],"plain_english_summary":"## Guardianship and Custody of Infants Act 1934 (Tasmania)\n\n**What is this law?**\nThis is a very old Tasmanian law — dating back to 1934 — that deals with who has legal responsibility for children (referred to as 'infants' in the old legal sense, meaning people under 18). It covers **guardianship** (who makes important life decisions for a child, like education and health) and **custody** (who a child physically lives with).\n\n**Who does it affect?**\nPrimarily parents going through separation or disputes over children, as well as anyone seeking to be appointed as a legal guardian for a child in Tasmania.\n\n**Why does it matter?**\nIn practice, this Act has been largely overtaken by **Commonwealth (national) family law** — particularly the *Family Law Act 1975* — which gives the Federal family courts broad power over children's matters. For most Tasmanians dealing with custody or guardianship disputes, the federal system will be the main avenue. However, this State Act may still have limited relevance in certain situations not fully covered by the federal framework.\n\n**Key concern for readers:** The legislation is very dated (1934) and the available text here provides almost no substantive detail about its actual provisions — just administrative and status information. If you are dealing with a guardianship or custody issue in Tasmania, you should seek legal advice, as federal family law almost certainly governs your situation rather than this Act."}},"importantCases":[],"_links":{"self":"/api/acts/guardianship-and-custody-of-infants-act-1934","history":"/api/acts/guardianship-and-custody-of-infants-act-1934/history","analysis":"/api/acts/guardianship-and-custody-of-infants-act-1934/analysis","conflicts":"/api/acts/guardianship-and-custody-of-infants-act-1934/conflicts","importantCases":"/api/acts/guardianship-and-custody-of-infants-act-1934/important-cases","documents":"/api/acts/guardianship-and-custody-of-infants-act-1934/documents"}}