What it does
The Guardianship of Infants Act 1916 establishes a statutory framework for the appointment, powers, and removal of guardians of minors in New South Wales. At its core the Act operates on the principle that guardianship flows first to the surviving parent and may be supplemented or overridden by court order where the welfare of the minor so requires.
Section 13(1) provides that on the death of a parent the surviving parent “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.” Where no guardian has been appointed by the deceased parent, or any appointed guardian is dead or refuses to act, s 13(2) permits the court to appoint a guardian to act jointly with the surviving parent “if it thinks fit”.
Parents are given express power under s 14(1) to appoint a guardian by deed or will to act after their death. The appointed guardian acts jointly with the surviving parent while that parent lives unless the surviving parent objects (s 14(3)). If objection occurs, or the appointed guardian believes the surviving parent is unfit, either may apply to the court. The court may then refuse to intervene (leaving the surviving parent as sole guardian), order joint guardianship, or make the appointed guardian the sole guardian (s 14(4)). In the latter case the court may also make orders as to custody, access, and periodic maintenance payments “having regard to the welfare of the minor” and “the means of the surviving parent”.
Where both parents have appointed guardians, those guardians act jointly after the death of the surviving parent (s 14(5)). A guardian previously appointed by the court to act with a surviving parent continues after that parent’s death and acts jointly with any guardian appointed by the surviving parent (s 14(6)).