{"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.","sortOrder":0},{"sectionNumber":"2.","sectionType":"section","heading":null,"content":"### 2.\n\n*\\[Section 2 Repealed by 25 Geo.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":{"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."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The Act consolidates and replaces earlier statutes listed in Schedule 1 (the Infants' Custody Act 1874, Guardianship of Infants Act 1887, Custody of Children Act 1891, and related amendments). It preserves the Court’s existing jurisdiction under other statutes and the Charter of Justice (s.20), so the statutory text both repeals prior Acts (Schedule 1) and explicitly maintains other judicial powers. The practical scope therefore changed from the repealed enactments by consolidation into this Act while retaining broader judicial appointment powers outside the Act (s.20)."},"complexity_factors":["Broad judicial discretion throughout (s.7, s.9, s.10, s.12–s.15) producing case-by-case outcomes","Multiple sources of appointment power (father by deed/will s.4; mother in certain circumstances s.5–s.6) with conditional Court confirmation (s.6(1)(b))","Interplay between private agreements (separation deeds s.18) and judicial supervision (s.18, s.20)","Procedural delegation to judges to make rules (s.19) meaning practice can vary over time","Cross-references and preserved prior jurisdiction (Schedule 1; s.20) require reading alongside other instruments to see full scope","Definitions that expand 'person' to include institutions for particular sections (s.17) affecting who can be ordered","Discrete cost-ordering powers (s.10, s.13) that create financial implications tied to judicial findings"],"plain_english_summary":"### What this law does, who it affects, and how it works\n\n- This Act sets out who can be a guardian of an infant (a child under the law), what powers guardians have over the child and the child's property, and how disputes about guardianship and custody are decided. The Court referred to throughout is the Supreme Court (s.3(1)).\n\n- Who can appoint guardians and when\n  - The father may appoint a guardian by deed or will for the child's minority or a shorter term (s.4(1)). That power applies even to a child born after the father's death and may be exercised by a father under 18 (s.4(2)).\n  - If the father dies and the mother survives, the mother becomes guardian alone if the father appointed none, or jointly with any guardian the father appointed (s.5(1)). The Court can appoint a guardian to act jointly with the mother where no guardian was appointed, or where an appointed guardian is dead or refuses to act (s.5(2)).\n  - The mother can appoint by deed or will a guardian to act after both parents die, and may provisionally nominate a guardian to act jointly with the father; the Court can confirm that nomination or make other orders if it is satisfied the father is unfit (s.6).\n\n- Court role and discretion\n  - If guardians disagree about a matter affecting the child's welfare, any guardian may ask the Court for directions and the Court may make any order it thinks proper (s.7).\n  - The Court may remove a guardian and appoint another if removal is for the child's welfare (s.9).\n  - The Court may make orders about custody and access on application by either parent (who may apply without a next friend), taking into account the child's welfare, parents' conduct and parents' wishes; the Court may alter those orders later and may make orders as to costs (s.10).\n  - The Court may refuse to issue a writ or order for production or custody of a child where it considers a parent has abandoned the child or otherwise conducted themselves so that enforcement of custody should be refused (s.12). The Court must also consider a parent’s conduct before ordering delivery of a child in abandonment situations (s.14).\n  - Where custody is ordered to a parent but the child has been brought up by another person, the Court may order the parent to reimburse the costs properly incurred in bringing up the child, in whole or in part (s.13).\n  - On applications about custody the Court may make orders to secure the child’s religious education in the religion the parent has a legal right to require (s.15).\n  - The Court retains power to consult the child about wishes and to respect the child’s free choice (s.16).\n\n- Powers of a guardian\n  - A guardian can take legal steps to recover a child wrongfully detained and recover damages for the child's use, manage the child’s property and income, take custody and tuition of the child, and bring actions necessary to carry out these powers (s.8).\n\n- Procedure and overlap with earlier law\n  - Judges (or a majority of them) may make rules governing practice and procedure under the Act (s.19).\n  - The Act repeals several prior statutes (Schedule 1) but expressly preserves other jurisdiction the Court has under any statute or the Charter of Justice to appoint guardians and keepers of infants and their estates (s.20; Schedule 1).\n\nPurpose claims and a brief test against costs, incentives and trade-offs\n\n- Express or evident purpose: The Act is drafted to allocate decision rights about guardianship and custody between parents and the Court, to define guardians’ powers, and to provide remedies and processes when disputes arise (see especially ss.3–10, 12–15). The repeal schedule indicates consolidation of earlier laws into this statute (Schedule 1) while s.20 preserves existing court jurisdiction.\n\n- Who pays and financial incentives (sections cited)\n  - The Court may make cost orders and can require a parent to pay the reasonable costs of the person who has been bringing up the child if the child is returned to the parent (s.10, s.13). This allocates direct financial liability to parents ordered to take custody and creates an incentive for custodial claimants to consider the potential cost orders.\n\n- Who decides and discretion (sections cited)\n  - The Supreme Court is the primary decision-maker for contested matters under the Act (s.3(1)). The Court exercises broad discretion on custody, removal of guardians, production of children, cost orders, and confirmation or variation of maternal nominations (ss.5(2), 6(1)(b), 7, 9, 10, 12–15). Judges may make procedural rules (s.19). This concentrates decision-making power in the judiciary and allows case-by-case outcomes.\n\n- Compliance burden and process risks (sections cited)\n  - Parties seeking orders must proceed to the Supreme Court and follow rules of practice made by the judges (s.19). That requires engaging court procedure and potentially legal representation, which is a time and cost burden on individuals.\n\n- Effects on private agreements and individual choice (sections cited)\n  - Private agreements in separation deeds that transfer custody from father to mother are not automatically invalid (s.18), but the Court is not bound to enforce such agreements if the Court considers enforcement not in the child's benefit. This limits absolute contract freedom in custody matters and preserves judicial oversight.\n  - The Act explicitly allows the Court to consult the child's wishes and not to interfere with a child's right to exercise free choice (s.16), preserving scope for a child's own preferences to be considered.\n\n- Impact on businesses and institutions (sections cited)\n  - The Act is focused on family and child welfare and contains no provisions regulating business competition, prices, or productivity. It does, however, define “person” for ss.12–15 to include a school or institution (s.17), meaning institutions can be treated as parties for orders about production of a child or religious education.\n\n- Trade-offs, opportunity costs and implementation risk\n  - The Act trades off parental private arrangement enforceability for judicial oversight: parents retain powers to appoint guardians (ss.4, 6), but the Court may override or refuse enforcement where it deems necessary for the child's welfare (ss.5(2), 6(1)(b), 12, 18). The main implementation risk is reliance on judicial discretion leading to case-by-case variability in outcomes and the procedural costs of invoking Court powers (ss.7, 9, 10, 19).\n\n- Concentrated benefits and diffuse costs\n  - The statutory appointment powers (father’s wide appointment power at s.4 and maternal appointment in limited circumstances at s.6) are concentrated legal rights granted to individuals; the costs (court time, litigation costs, and compliance costs) are dispersed across parties and the court system. The Act does not create an ongoing administrative regime or recurring public charge in the text provided, beyond the Court process itself.\n\nIn sum: the Act allocates appointment powers between parents, defines guardians’ powers, and vests broad discretionary decision-making in the Supreme Court to decide custody, remove or appoint guardians, order costs, and supervise enforcement and religious-education questions, while preserving prior court jurisdiction and allowing judges to set procedure (see ss.3–20 and Schedule 1)."},"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."}},"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"}}