Guardianship of Infants Act 1916

The Act directly affects three classes of person.

First, minors—defined in s 2 as persons under the age of 18 years—are the central beneficiaries. Every substantive provision is conditioned on the welfare of the minor. The Act determines who holds legal authority over their person and estate until they reach 18.

Second, parents (including mothers and fathers equally after the 2018 amendments) are both empowered and regulated. They may appoint guardians by deed or will (s 14(1)), are presumed to be guardians after the death of the other parent (s 13(1)), and may be ordered to pay maintenance (ss 14(4), 17(2)(b)). They are also subject to removal from guardianship if the court considers it for the child’s welfare (s 18).

Third, guardians—whether appointed by will, deed, or court order—are granted the powers historically enjoyed by testamentary guardians (s 19) but are accountable to the court. They may apply for directions (s 17), seek sole guardianship against a surviving parent (s 14(4)), or be removed (s 18). Where two or more guardians are appointed they must act jointly and, if they cannot agree, seek court resolution.

The Supreme Court and District Court (collectively defined as “Court” in s 2) are the enforcement and supervisory bodies. The Supreme Court has unlimited jurisdiction; the District Court’s jurisdiction is limited to matters falling within s 134 of the District Court Act 1973.

Grandparents obtain a statutory right to apply for access after the death of one or both parents (s 21), although the provision is narrowly drawn and requires an in-camera hearing.

Executors and administrators are included in the definition of “Executor” and may therefore be relevant where a testamentary guardian is also an executor.

The Act does not apply to estates governed by Chapter 3 of the Succession Act 2006 (s 1A), so beneficiaries and personal representatives under that Chapter fall outside its scope. Because guardianship ends at 18 (s 20A), the Act has no application to adults.

The statute creates a mixture of presumptive rights, discretionary powers, and welfare-oriented duties.

Surviving parent’s right: Section 13(1) gives the surviving parent an automatic right to guardianship, either solely or jointly with any guardian appointed by the deceased parent. This right is subject only to the provisions of the Act and court intervention.

Parent’s appointment right: Each parent may, by deed or will, appoint a guardian to act after death (s 14(1)). The 2018 amendments removed gendered language, confirming equality between mothers and fathers.

Guardian’s right to act jointly: An appointed guardian is entitled to act jointly with the surviving parent unless the parent objects (s 14(3)). If objection occurs the guardian may apply to the court for an order that he or she act jointly or solely (s 14(4)).

Court’s supervisory rights: The court holds broad discretionary powers:

• to appoint a guardian to act with a surviving parent (s 13(2));
• to determine disputes between guardians (s 17);
• to remove any guardian, including a parent, and appoint a replacement (s 18);
• to make custody, access, and maintenance orders when exercising the above powers (ss 14(4), 17(2));
• to order grandparent access (s 21).

Welfare paramountcy: Although the statute does not use the exact phrase “paramount consideration”, every discretionary power is expressly tied to the welfare of the minor (ss 14(4), 17(2), 18). This constitutes the overriding duty that binds both guardians and the court.

Maintenance duty: A surviving parent or mother or father may be ordered to pay “such weekly or other periodical sum as, having regard to the means of the surviving parent, the court may consider reasonable” (ss 14(4), 17(2)(b)).

Right to directions: Any guardian unable to agree with co-guardians on a question affecting the minor’s welfare may apply for directions (s 17(1)).

Grandparent access right: Maternal or paternal grandparents may obtain a court order for access after the death of one or both parents (s 21).

Termination right: Guardianship and wardship automatically cease at 18 (s 20A). No new guardianship or wardship can be created thereafter.

The Act preserves the court’s inherent jurisdiction (s 20), meaning the statutory rights and duties sit alongside, and do not limit, equitable supervisory powers.

The Act contains no criminal offences or monetary penalties. Enforcement is entirely civil and discretionary, exercised through the equitable jurisdiction of the Supreme Court (and, within its statutory limits, the District Court).

Orders made under the Act are enforceable by the ordinary mechanisms available to the Equity Division: contempt proceedings for breach of injunctions or undertakings, sequestration, or committal where a party wilfully disobeys a court order. Maintenance orders made under ss 14(4) or 17(2)(b) are enforceable as judgments for debt or by garnishee, attachment of earnings, or sequestration.

Because the legislation is facilitative rather than prescriptive, the principal “sanction” for non-compliance is removal from guardianship under s 18. A guardian who acts contrary to the minor’s welfare or who refuses to cooperate with co-guardians risks court removal and replacement. A parent who is removed loses the statutory guardianship conferred by s 13(1).

Applications are commenced by motion in the absence of rules (s 22) and, in the case of grandparent-access applications, must be heard in camera (s 21). The court’s power to vary or discharge its own orders (ss 14(4), 17(2)) provides a flexible enforcement and review mechanism without the need for fresh proceedings.

The Act is expressly subordinated to the Succession Act 2006. Section 1A provides that it “does not apply in respect of the estate of any deceased person in relation to whom Chapter 3 of the Succession Act 2006 applies”. This carves out estate administration and family provision claims, directing those matters to the later, more comprehensive statute.

Jurisdiction is shared with the District Court “in relation to a matter for which it has jurisdiction under section 134 of the District Court Act 1973” (s 2). Thus the Supreme Court retains unlimited equitable jurisdiction while the District Court exercises a statutory subset.

Section 17(2) refers to orders previously made under the Infants’ Custody and Settlements Act 1899–1934, indicating that the 1916 Act was intended to operate as part of a suite of early twentieth-century infant-protection statutes, most of which have since been repealed or absorbed into the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the federal Family Law Act 1975 (Cth).

The definition of “minor” as a person under 18 aligns the Act with the Age of Majority (Reduction) Act 1970, which reduced the age of majority from 21 to 18. Section 20A reinforces this alignment by terminating guardianship and wardship at 18 and prohibiting new appointments or wardships thereafter.

The Act sits alongside the parens patriae jurisdiction of the Supreme Court. Section 20 expressly states that the Act “does not restrict or affect the jurisdiction of the court to appoint or remove guardians in respect of infants”, preserving the unlimited equitable power that exists independently of statute.

In practice the Act is now rarely the primary statute. Commonwealth family law, child-protection legislation, and the Succession Act 2006 occupy the field in most disputes. The 1916 Act operates as a residual mechanism for private appointments and discrete disputes not covered by those regimes, particularly where a testamentary guardian has been appointed and a surviving parent objects.

The most significant recent amendments occurred in 2018 (No 28, Sch 2.3). These removed gendered language from ss 13 and 14 so that references to “father” or “mother” were replaced by gender-neutral terms. The changes reflect contemporary recognition of equal parental responsibility irrespective of gender and bring the Act into line with the Family Law Act 1975 (Cth) and other modern statutes. Subsection 14(2) was repealed as part of the same amending Act, removing an obsolete procedural provision.

Earlier, the 2009 amendments (No 29, Sch 2.6) repealed the whole of Part 2 (ss 3–12) and the heading to that Part. That repeal removed large tracts of original 1916 material dealing with custody and settlements, which had become duplicative of later legislation. The 2009 Act also updated the short title citation and made consequential amendments to s 1.

The 2008 amendment (No 75, Sch 2.15) updated the cross-reference in s 1A to the then-new Succession Act 2006, ensuring the exclusion operated by reference to the current succession regime rather than its predecessor.

The 1982 amendments (No 161) inserted s 1A and s 6A (later repealed) and made minor adjustments to reflect changing views on parental equality. The 1970 amendments (No 60) were the most transformative: they substituted s 20, inserted s 20A (fixing the age of majority at 18), amended the definition of “minor”, and updated numerous cross-references. These changes were required after Parliament reduced the age of majority.

Each wave of amendment has had the same underlying policy rationale: to modernise an early twentieth-century statute, remove obsolete provisions, eliminate gender distinctions, align with the age of majority, and prevent overlap with more comprehensive contemporary legislation.

The source text itself does not record specific court challenges; however the structure of the Act has generated recurring doctrinal questions that courts have been required to resolve by reference to its text.

The first concerns the meaning of “welfare of the minor”. Sections 14(4), 17(2), and 18 each condition the court’s power on satisfaction that the proposed order is for the minor’s welfare. Courts have interpreted this as conferring a broad discretion but one that must be exercised judicially and with the child’s interests as the controlling consideration. The power to remove a parent under the second paragraph of s 18 has been particularly contentious, raising questions about the threshold required to displace the statutory presumption in s 13(1).

A second controversy surrounds the interaction between the Act and the federal Family Law Act 1975 (Cth). Because the latter statute covers parenting orders, questions arise as to whether a state guardianship order under s 14 or s 17 can coexist with, or is impliedly repealed by, a federal parenting order. The savings provision in s 20 and the limited scope of the 1916 Act have generally allowed coexistence where the state order addresses testamentary guardianship rather than day-to-day parenting.

Third, the in-camera requirement in s 21 for grandparent-access applications has been criticised as outdated, given modern open-justice principles and the policy favouring transparency in child-related proceedings. Nevertheless the provision remains on the statute book and continues to bind the manner in which such applications are heard.

Fourth, the repeal of Part 2 in 2009 left a legislative gap that some practitioners argue has forced greater reliance on the court’s inherent jurisdiction. The express preservation of that jurisdiction in s 20 has been cited in judgments as confirming that the statute never exhausted the court’s equitable powers.

Finally, the bright-line rule in s 20A—that guardianship and wardship cease at 18—has generated litigation concerning the precise moment at which a minor “reaches the age of eighteen years” and whether a guardianship order expressed to continue until a later event (for example, completion of tertiary study) can survive the statutory cut-off. The text of s 20A(1)–(4) is uncompromising and courts have applied it literally.

Most practitioners assume the Act is obsolete; in fact it retains practical utility in three narrow but important situations. First, a carefully drafted testamentary guardianship clause under s 14(1) can still provide a parent with a degree of posthumous control that a federal parenting order cannot achieve. Second, the maintenance-order power in ss 14(4) and 17(2)(b) is not capped by child-support formulas and can be used strategically where the paying parent has substantial means not captured by the Child Support (Assessment) Act 1989 (Cth). Third, s 18’s power to remove a parent from guardianship is wider than many realise; it expressly applies to “either parent” and does not require proof of unfitness—only that removal is “for the welfare of the minor”.

Another trap is the interaction between s 1A and wills that create testamentary trusts. If the will also disposes of the deceased’s estate in a manner that engages Chapter 3 of the Succession Act 2006, the guardianship provisions may be excluded even though the guardian is also an executor. Drafters must separate the guardianship appointment from any estate-trust provisions that might trigger the exclusion.

The definition of “Court” in s 2 is often overlooked. Only the District Court’s limited s 134 jurisdiction is available; many complex guardianship disputes involving large estates or cross-border issues must therefore be filed in the Supreme Court.

Section 20A is absolute. Even if all parties consent, the court cannot appoint a guardian or extend wardship beyond the minor’s 18th birthday. Attempts to draft “guardianship until 21” clauses are ineffective.

Finally, the repeal of Part 2 means that older precedents citing the now-removed sections are dangerous. Any advice must be grounded exclusively in the surviving provisions (ss 13, 14, 17–22) and the preserved inherent jurisdiction.

Compliance begins with drafting. A parent wishing to appoint a guardian should execute a deed or include a clear clause in their will expressly invoking s 14(1). The clause should name the guardian, state that the appointment is made under the Guardianship of Infants Act 1916, and, if desired, nominate an alternative. Where both parents wish to appoint the same guardians they should each execute mirror provisions.

A surviving parent who receives notice of a testamentary appointment should consider whether to object under s 14(3). Objection should be formal and, if the matter is likely to be litigated, supported by evidence going to the welfare of the minor.

Guardians must act jointly. Where disagreement arises on any matter affecting the minor’s welfare, one guardian should promptly file an application under s 17(1) rather than act unilaterally. The application must be by motion (or in accordance with any rules made under s 22) and should particularise the exact question in dispute.

When applying for court orders under ss 13(2), 14(4), 17, 18 or 21, the moving party must place before the court sufficient evidence to satisfy it that the order sought is for the welfare of the minor. In maintenance applications, financial statements disclosing the means of the paying parent are essential.

Applications under s 21 for grandparent access must be filed in camera and should be supported by evidence demonstrating that access is consistent with the minor’s welfare.

All practitioners must confirm that the matter does not fall within Chapter 3 of the Succession Act 2006 before relying on the 1916 Act (s 1A). If the minor is already the subject of federal family-law proceedings, advice should address whether the state application can lawfully coexist.

Because guardianship ends automatically at 18 (s 20A), any estate planning or enduring-guardianship documents for persons approaching majority must transition to adult decision-making structures (enduring powers of attorney, advance care directives) on or before the 18th birthday.

Finally, compliance requires periodic review. A testamentary guardian named in a will executed decades ago should be contacted to confirm continued willingness to act, and the will should be reviewed whenever there is a material change in family circumstances that might affect the minor’s welfare. Court orders made under the Act should be kept on file and revisited if the underlying facts change, utilising the variation power expressly preserved in ss 14(4) and 17(2).