{"id":"nsw:act-1916-041","name":"Guardianship of Infants Act 1916","slug":"guardianship-of-infants-act-1916","collection":"act","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"41 of 1916","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":111972,"registerId":"nsw-act-1916-041-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"# Part 1 Preliminary\n\nPart 1 Preliminary\n\n**pt 1, hdg:** Ins 1999 No 31, Sch 5.106 \\[2\\].","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"#### 1 Name of Act\n\n1 Name of Act\n\n> This Act may be cited as the [Guardianship of Infants Act 1916](/view/html/inforce/current/act-1916-041).\n> \n> **s 1:** Am 2009 No 29, Sch 2.6 \\[1\\].","sortOrder":1},{"sectionNumber":"1A","sectionType":"section","heading":"Application of Act","content":"#### 1A Application of Act\n\n1A Application of Act\n\n> This Act does not apply in respect of the estate of any deceased person in relation to whom Chapter 3 of the [Succession Act 2006](/view/html/inforce/current/act-2006-080) applies.\n> \n> **s 1A:** Ins 1982 No 161, Sch 1 (1). Am 2008 No 75, Sch 2.15.","sortOrder":2},{"sectionNumber":"2","sectionType":"section","heading":"Definitions","content":"#### 2 Definitions\n\n2 Definitions\n\n> In this Act, unless the context otherwise requires:\n> \n> Court means:\n> \n> > (a) the Supreme Court, in relation to any matter (including a matter referred to in paragraph (b)), or\n> \n> > (b) the District Court, in relation to a matter for which it has jurisdiction under section 134 of the [District Court Act 1973](/view/html/inforce/current/act-1973-009).\n> \n> Executor includes administrator with the will annexed.\n> \n> Minor means a person under the age of eighteen years.\n> \n> **s 2:** Am 1970 No 60, First Sch; 1997 No 141, Sch 1.12.","sortOrder":3},{"sectionNumber":"Part 2","sectionType":"part","heading":null,"content":"# Part 2\n\nPart 2\n\n3–12 (Repealed)\n\n**pt 2, hdg:** Ins 1999 No 31, Sch 5.106 \\[3\\]. Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**pt 2:** Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 3:** Am 1938 No 30, sec 9 (a); 1954 No 40, sec 4 (1) (a); 1982 No 161, Sch 1 (2). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 4:** Am 1938 No 30, sec 9 (b); 1954 No 40, sec 4 (1) (b). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 5:** Am 1938 No 30, sec 9 (c); 1954 No 40, sec 4 (1) (c); 1970 No 60, First Sch. Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 6:** Am 1938 No 30, sec 9 (d). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 6A:** Ins 1982 No 161, Sch 1 (3). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 7:** Am 1938 No 30, sec 9 (e). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 8:** Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 9:** Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 10:** Am 1938 No 30, sec 9 (f). Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 11:** Am 1938 No 30, sec 9 (g). Subst 1977 No 121, sec 3. Rep 2009 No 29, Sch 2.6 \\[2\\].\n\n**s 12:** Rep 2009 No 29, Sch 2.6 \\[2\\].","sortOrder":4},{"sectionNumber":"Part 3","sectionType":"part","heading":"Guardianship of minors","content":"# Part 3 Guardianship of minors\n\nPart 3 Guardianship of minors\n\n**pt 3, hdg:** Ins 1999 No 31, Sch 5.106 \\[4\\].","sortOrder":5},{"sectionNumber":"13","sectionType":"section","heading":"Rights of surviving parent as to guardianship","content":"#### 13 Rights of surviving parent as to guardianship\n\n13 Rights of surviving parent as to guardianship\n\n> **s 13, hdg before:** Am 1970 No 60, First Sch. Rep 1999 No 31, Sch 5.106 \\[1\\].\n> \n> > (1) On the death of a parent of a minor (the deceased parent), a surviving parent of the minor is, subject to the provisions of this Act, to be a guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent.\n> \n> > (2) Where no guardian has been appointed by the deceased parent, or if the guardian or guardians appointed by the deceased parent is or are dead or refuses or refuse to act, the court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent of the minor.\n> \n> **s 13:** Subst 1934 No 20, sec 5 (1) (a). Am 1970 No 60, First Sch. Subst 2018 No 28, Sch 2.3 \\[1\\].","sortOrder":6},{"sectionNumber":"14","sectionType":"section","heading":"Power of parents to appoint guardians","content":"#### 14 Power of parents to appoint guardians\n\n14 Power of parents to appoint guardians\n\n> > (1) The parent (including a mother or father) of a minor may by deed or will appoint any person to be guardian of the minor after his or her death.\n> \n> > (2) (Repealed)\n> \n> > (3) Any guardian so appointed shall act jointly with the surviving parent (including the mother or father, as the case may be) of the minor so long as the surviving parent remains alive, unless the surviving parent objects to his so acting.\n> \n> > (4) If the surviving parent so objects, or if the guardian so appointed considers that the surviving parent is unfit to have the custody of the minor, the guardian may apply to the court.\n> > \n> > The court may either refuse to make an order (in which case the surviving parent shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the surviving parent, or that he shall be sole guardian of the minor.\n> > \n> > Where the court makes an order that the guardian so appointed shall be the sole guardian of the minor, the court may make such order regarding the custody of the minor and the right of access thereto of its mother or father as, having regard to the welfare of the minor, the court may think fit, and may further order that the surviving parent shall pay to the guardian towards the maintenance and education of the minor such weekly or other periodical sum as, having regard to the means of the surviving parent, the court may consider reasonable.\n> > \n> > The powers conferred by this subsection may be exercised at any time and shall include power to vary or discharge any order previously made in virtue of those powers.\n> \n> > (5) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly.\n> \n> > (6) If under the preceding section a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent.\n> \n> **s 14:** Subst 1934 No 20, sec 5 (1) (a). Am 1970 No 60, First Sch; 2018 No 28, Sch 2.3 \\[2\\]–\\[5\\].","sortOrder":7},{"sectionNumber":"15","sectionType":"section","heading":null,"content":"#### 15\n\n15, 16 (Repealed)","sortOrder":8},{"sectionNumber":"17","sectionType":"section","heading":"Guardians may apply to court for directions","content":"#### 17 Guardians may apply to court for directions\n\n17 Guardians may apply to court for directions\n\n> > (1) In the event of guardians being unable to agree upon a question affecting the welfare of a minor, any of them may apply to the court for its direction, and the court may make such order regarding the matters in difference as it may think proper.\n> \n> > (2) The power conferred by the foregoing provisions of this section shall include power to vary or discharge any order made under this section or made by any court under the Infants’ Custody and Settlements Act 1899–1934 and, where one of the guardians is the mother or father of a minor, shall also include power:\n> > \n> > > (a) to make such orders regarding the custody of a minor and the right of access thereto as, having regard to the welfare of a minor, the court may think fit, and\n> > \n> > > (b) to order the mother or father to pay towards the maintenance or education of a minor such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable.\n> \n> **s 17:** Am 1934 No 20, sec 5 (1) (b); 1970 No 60, First Sch.","sortOrder":10},{"sectionNumber":"18","sectionType":"section","heading":"Power of court to remove guardian","content":"#### 18 Power of court to remove guardian\n\n18 Power of court to remove guardian\n\n> The court may, in its discretion, on being satisfied that it is for the welfare of the minor, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if the court shall deem it to be for the welfare of the minor, appoint another guardian in place of the guardian so removed.\n> \n> The powers of the court under this section extend to the removal of either parent from guardianship under this Act.\n> \n> **s 18:** Am 1934 No 20, sec 6 (1); 1970 No 60, First Sch.","sortOrder":11},{"sectionNumber":"19","sectionType":"section","heading":"Powers of guardians","content":"#### 19 Powers of guardians\n\n19 Powers of guardians\n\n> Every guardian under this Act shall have all such powers over the estate and the person, or over the estate (as the case may be) of a minor, as any guardian appointed by will or otherwise now has.\n> \n> **s 19:** Am 1970 No 60, First Sch.","sortOrder":12},{"sectionNumber":"20","sectionType":"section","heading":"Savings","content":"#### 20 Savings\n\n20 Savings\n\n> Subject to section 20A, this Act does not restrict or affect the jurisdiction of the court to appoint or remove guardians in respect of infants.\n> \n> **s 20:** Subst 1970 No 60, First Sch.","sortOrder":13},{"sectionNumber":"20A","sectionType":"section","heading":"Guardianship to end at 18 years","content":"#### 20A Guardianship to end at 18 years\n\n20A Guardianship to end at 18 years\n\n> > (1) Guardianship of the person or of the estate of a minor, whether under an appointment by the court or otherwise, shall cease upon the minor reaching the age of eighteen years.\n> \n> > (2) Where a minor has been made a ward of court, the wardship shall not continue after he reaches the age of eighteen years.\n> \n> > (3) A guardian shall not be appointed, by the court or otherwise, of the person or of the estate of a person who has reached the age of eighteen years.\n> \n> > (4) The court shall not make a person aged eighteen years or upwards a ward of court.\n> \n> **s 20A:** Ins 1970 No 60, First Sch.","sortOrder":14},{"sectionNumber":"21","sectionType":"section","heading":"Court may order access by grandparents","content":"#### 21 Court may order access by grandparents\n\n21 Court may order access by grandparents\n\n> In the event of the death before or after the passing of this Act of the parents or of one of the parents of a minor the court may order that the maternal or paternal grandparents of the minor or any one of them shall have access to the minor at such times and places as the court shall deem proper:\n> \n> Provided that applications under this section shall be heard in camera.\n> \n> **s 21:** Am 1970 No 60, First Sch.","sortOrder":15},{"sectionNumber":"Part 4","sectionType":"part","heading":"General","content":"# Part 4 General\n\nPart 4 General\n\n**pt 4, hdg:** Ins 1999 No 31, Sch 5.106 \\[5\\].","sortOrder":16},{"sectionNumber":"22","sectionType":"section","heading":"Rules","content":"#### 22 Rules\n\n22 Rules\n\n> The court may make rules for regulating the practice and procedure in any applications and proceedings under this Act, and prescribe the forms in such proceedings.\n> \n> Any application under this Act shall be made in accordance with such rules.\n> \n> Until such rules are made, any application under this Act shall be by motion, and the practice of the Equity Court shall apply thereto.","sortOrder":17}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":true,"description":"The legislation has narrowed considerably from its 1916 origins. Wholesale repeal of Part 2 in 2009 removed large tracts of original material on custody and settlements. What remains is now a supplementary framework focused on post-death guardianship appointments, court removal powers, and limited grandparent access, deferring broader child-welfare matters to contemporary statutes such as the Succession Act 2006 and federal family law."},"complexity_factors":["Extensive amendment history with most of Part 2 (ss 3–12) repealed in 2009, leaving a fragmented structure","Cross-references to the Succession Act 2006, District Court Act 1973 s 134, and repealed historical legislation such as the Infants’ Custody and Settlements Act 1899–1934","Multiple layers of conditional court discretions (e.g. 'if it thinks fit', 'for the welfare of the minor', 'having regard to the means of the surviving parent')","Defined terms (Court, Executor, Minor) that interact with both common-law guardianship and statute","Savings and application provisions (ss 1A, 20, 20A) that carve out exceptions and age limits"],"plain_english_summary":"**The Guardianship of Infants Act 1916** sets out basic rules for who cares for a child (called a 'minor' – anyone under 18) after a parent dies or when guardians cannot agree. \n\nA surviving parent normally becomes the guardian, either alone or together with anyone the dead parent named in a will or deed. Parents can formally appoint guardians to act after they die. If the surviving parent objects or is seen as unfit, or if guardians disagree on important decisions, the Supreme Court or District Court can intervene. The court can appoint guardians, remove them, decide who the child lives with, allow access for grandparents, and order a parent to pay maintenance. \n\nEverything must focus on the child's welfare. The Act does not cover estates dealt with under the Succession Act 2006. It matters because it gives courts flexible powers to protect children when families break down or a parent dies, while letting parents plan ahead through simple legal documents."},"summary":{"complexity_score":3,"scope_assessment":{"changed":true,"description":"The scope has narrowed considerably from its original intent. The Act was originally titled the 'Testator's Family Maintenance and Guardianship of Infants Act 1916', indicating it covered both inheritance/will disputes (testamentary family maintenance) and child guardianship. The testamentary provisions have since been separated, leaving only the guardianship framework. Additionally, the practical scope has been dramatically reduced by the introduction and dominance of the federal Family Law Act 1975, which now handles the vast majority of guardianship and parenting matters in Australia."},"complexity_factors":["The actual operative text of the Act is not provided — only metadata and status information — making full analysis impossible","The Act's original dual purpose (testamentary/inheritance provisions plus guardianship) has been split over time, creating historical complexity","Significant interaction and overlap with federal Family Law Act 1975, requiring understanding of which law applies in which circumstances","Archaic language and concepts ('infants', older common law guardianship principles) that differ from modern legal terminology","Multiple historical versions since 1999 suggest ongoing amendments, requiring attention to which version applies to a given situation"],"plain_english_summary":"## Guardianship of Infants Act 1916 (NSW)\n\nThis is a very old New South Wales law — originally passed in 1916 — that deals with the **guardianship of children** (referred to in the old legal language as 'infants', meaning anyone under 18).\n\n**What does it do?**\nAt its core, this legislation provides a legal framework for determining who has responsibility for the care and upbringing of a child. 'Guardianship' means the legal right and responsibility to make decisions about a child's life — where they live, their education, healthcare, and general welfare.\n\n**Who does it affect?**\n- Parents going through separation or disputes over children\n- People seeking to become legal guardians of a child (e.g. grandparents, other relatives)\n- Children whose welfare is at issue\n- Courts dealing with child custody and guardianship matters\n\n**Important context:**\n- The Act was previously called the *Testator's Family Maintenance and Guardianship of Infants Act 1916*, suggesting it originally also covered inheritance rights for family members left out of wills — that part has since been separated out\n- The law has been substantially superseded in practice by more modern federal legislation, particularly the *Family Law Act 1975*, which now governs most parenting and guardianship disputes in Australia\n- This NSW Act is still technically **in force**, but its practical reach is very limited given the dominance of federal family law\n- It falls under the responsibility of the **NSW Attorney General**\n\n**Why does it matter to you?**\nIf you are dealing with a guardianship dispute involving a child in NSW, this Act may have some relevance, but you should primarily look to the federal *Family Law Act 1975* and seek legal advice, as that law now covers the vast majority of parenting and guardianship matters across Australia."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The Act’s present scope has been altered since its original enactment. The text includes multiple amendment and repeal annotations: Part 2 is repealed (annotation to pt 2); section 1A was inserted and later amended to exclude matters falling under Chapter 3 of the Succession Act 2006 (s 1A, annotations); section 20A (guardianship ends at 18 years) was inserted (s 20A, annotation). Other amendments to sections (for example s 14 and s 13) are also noted in the annotations. These recorded amendments and repeals indicate the Act’s substantive reach and mechanisms differ from the original version."},"complexity_factors":["Broad judicial discretion across multiple provisions (ss 13(2), 14(4), 17, 18, 21) which creates outcome uncertainty and requires case-by-case determination.","Interplay with other statutes: the Act excludes matters covered by Chapter 3 of the Succession Act 2006 (s 1A) and relies on District Court jurisdiction under the District Court Act (s 2).","Procedural requirements and rule‑making: the court may make rules governing applications and procedure, and until rules are made the Equity Court practice applies (s 22).","Multiple historical amendments and repeals are recorded in the text (annotations to Part 2, s 1, s 1A, s 20A, s 14), which requires attention to current versus repealed provisions.","Age‑based cutoff: guardianship terminates at 18 (s 20A), creating a sharp legal boundary that interacts with other legal regimes for adults."],"plain_english_summary":"What this law does, in plain terms\n\n- Sets out who can be a guardian of a child (a \"minor\") and what powers and duties a guardian has (see s 2 for definitions; ss 13–19 for rights, appointment and powers).\n- Gives a surviving parent an automatic right to act as guardian on the other parent's death, subject to the Act and to any court order (s 13).\n- Allows a parent to appoint a guardian for their child by deed or will; such an appointed guardian normally acts jointly with a surviving parent unless the surviving parent objects or the court changes the arrangement (s 14).\n- Lets guardians apply to the court for directions when they cannot agree about the child’s welfare; the court can make, vary or discharge orders about custody, access and maintenance (s 17). The court may order a parent to pay for the child’s maintenance or education (s 14(4), s 17(2)(b)).\n- Gives the court broad discretionary powers to appoint or remove guardians if it considers that is in the child’s welfare (s 13(2), s 18). The court’s jurisdiction is preserved and may be exercised in light of other statutes (s 20, s 2).\n- Ends guardianship at age 18: guardianship of person or estate ceases when the child turns 18; wardship cannot continue after 18 and the court cannot make someone 18 or over a ward (s 20A).\n- Permits the court to order access for grandparents in certain cases, with such hearings to be held in camera (s 21).\n- Gives the court power to make rules governing how applications under the Act are made and heard (s 22).\n- Excludes from this Act any matter that falls under Chapter 3 of the Succession Act 2006 (s 1A).\n\nWho it affects and who decides\n\n- Primary subjects: minors (people under 18), their parents, appointed guardians, testamentary executors/administrators who name guardians, and grandparents seeking access (ss 2, 13–21).\n- Decision-makers: the Supreme Court (and the District Court for matters within its jurisdiction under the District Court Act) exercise the Act’s powers and have broad discretion in appointment, removal and orders (s 2; ss 13(2), 14(4), 17, 18, 21, 22).\n- Who pays/financial effects: the Act explicitly empowers the court to order a parent to pay toward a minor’s maintenance or education (s 14(4), s 17(2)(b)). No other fees, taxes or business regulations are imposed by the Act.\n\nWhy it matters (stated effect and practical trade-offs)\n\n- Mechanically, the Act creates a judicial framework for appointing, supervising and removing guardians, resolving guardian disputes, and securing access or maintenance orders for minors. That framework concentrates decision-making authority with courts (ss 13–19, s 22).\n- Incentives and costs: parents can pre-designate guardians (s 14), which preserves private choice about post‑death care; however, the availability of court intervention (ss 13–14, 17–18) means private appointments can be modified by judicial order. This creates a trade-off between parental autonomy in appointments and judicial oversight focused on the minor’s welfare. Court involvement imposes transaction costs on parties (applications, hearings, potential orders to pay maintenance) and creates uncertainty because outcomes rest on judicial discretion (ss 13(2), 14(4), 17, 18).\n- Compliance and administrative burden: parties seeking orders must follow court rules and procedures as the court prescribes (s 22); grandparent access applications are to be heard in camera (s 21), which affects how proceedings are conducted.\n- Overlap and scope limits: the Act explicitly does not operate for estates covered by Chapter 3 of the Succession Act 2006 (s 1A), and it relies on definitions of court jurisdiction (s 2), so parties must navigate related statutes to know which forum and rules apply.\n\nConcrete risks and implementation notes\n\n- Judicial discretion is broad (appointment, removal, custody, access, maintenance — ss 13, 14, 17, 18, 21). That can produce variable outcomes and encourages resort to court processes to resolve contested matters.\n- The Act limits guardianship to under‑18s (s 20A), so any continuing protective orders must be sought under other law if needed after 18.\n- The Act has undergone amendments and repeals over time (annotations to several sections), so its present reach reflects those legislative changes rather than the Act as first enacted (see annotations to pt 2, s 1A, s 20A, s 14)."}},"importantCases":[],"_links":{"self":"/api/acts/guardianship-of-infants-act-1916","history":"/api/acts/guardianship-of-infants-act-1916/history","analysis":"/api/acts/guardianship-of-infants-act-1916/analysis","conflicts":"/api/acts/guardianship-of-infants-act-1916/conflicts","importantCases":"/api/acts/guardianship-of-infants-act-1916/important-cases","documents":"/api/acts/guardianship-of-infants-act-1916/documents"}}