10 March 2023

Guardianship orders in family law in Australia

JB Solicitors


Our team would be known as inspiring leaders within the community, displaying strong leadership on important issues in society even if it comes at a short-term cost. In delivering value by being both innovative and convenient, using technology and shifting the culture of work-life in the profession, we will attract the best and most diverse team of people. By creating opportunity and revolutionising our segment of the Profession through innovation and convenience for clients, we will assert a strong belief that having work experience at JB Solicitors is a door-opening in the legal profession. The knowledge and experience gained in working at our firm will be equivalent to, if not better than, obtaining an internship at a large top tier law firm.
Guardianship orders in Australia refer to orders for children who are in out-of-home or foster care.
Australia Family and Matrimonial
To print this article, all you need is to be registered or login on

Family courts make Guardianship orders to support a child who is usually under the age of 18 into the care of someone other than their parents. Guardianship orders in Australia refers to orders for children who are in out-of-home or foster care. There are various provisions under the Guardianship and Administration Act in different states of Australia.

These apply in cases when the child is not safe to return to their own family. In such cases, the child is to remain, and spend time with his/her legal guardian unit he/she turns 18 years of age. Alternatively, the Children's Court may decide to change the orders.

Guardianship in Australia means that once the court makes such orders, the child is not under foster care anymore. Instead, the child will remain under the independent and care of the guardian appointed.

In other words, the guardian gets full parental responsibility for the child until they become an adult and can make all their personal decisions, financial decisions and medical decisions. The represented person will make decisions on if the child needs medical treatment.

When Do Courts Make Guardianship Orders Australia?

For family courts to make such orders, it must first be satisfied that:

  1. The person applying to be a guardian will provide a safe, stable, nurturing and secure environment for the child
  2. It is unlikely that the child or young one will return to the care of his/her parent.
  3. The child gives written consent if they are aged 12 years or older, and have the capacity to provide consent, and
  4. If the child is of Aboriginal or Torres Strait Islander descent, their placement follows the appropriate placement principles.

How to Apply For Guardianship Orders Australia?

Before we look at how to apply for guardianship in Australia, it is important for you to note the difference between guardianship Australia and adoption.

While adoption completely changes the legal relationship between the child and his/her birth parents, guardianship does not affect their legal relationship. Guardianship only gives the guardian parental responsibility over the child until he/she turns 18 years of age.

Generally, the child's relatives or next of kin can apply for guardianship. If not relatives, then parties who have established relationship with their child like the foster carer, can apply for this.

What are they required to do under guardianship orders Australia? What are their duties and responsibilities? Given below are some of the duties and responsibilities. A guardian:

  • Will ensure the child or your person's needs are met. This includes their emotional, social, cultural and spiritual needs,
  • Is responsible for following court orders, and the case plan and including contact arrangements,
  • Has full responsibility for the child or young person,
  • Is responsible for arranging, coordinating and supervising contact between the child and their birth family
  • Can provide an annual update to the Department of Communities and Justice (DCJ) about the child,
  • Is responsible for following the care or case plan, or court orders, for that child, including contact arrangements.

Guardianship Orders For Adults

As opposed to just for childcare under 18, this can also apply for adults in some cases. In NSW, the Guardianship Act 1987 governs the appointment of guardians for all adults with decision-making disability.

The NSW Civil and Administrative Tribunal (NCAT) can appoint a guardian if a person has a decision-making disability and so they require a guardian who can help them manage themselves. They can make such orders for persons who are residing in NSW, and who are over 16.

Generally, parties can also make informal arrangements to appoint guardians. But, if these arrangements break down, they will need to get formal court orders.

Guardianship Allowance

Some guardians, may be eligible to receive an allowance or payments. The government may provide this allowance to guardians to help them with the day-to-day costs of looking after the child. However, the allowance may stop when the child turns 18 years of age, i.e. when he/she becomes an adult.

Seeking Legal Advice from Family Lawyers

If you wish to make an application for guardianship orders, it is important to seek legal advice from our f amily lawyers. It is important to understand all the steps involved when making such applications to the court. This is because, if the application is incomplete or inaccurate, it will lead to unnecessary delays in processing.

Especially if we are discussing guardianship for child under 18 years of age who are in foster-care, it is important to consider all necessary aspects so as to make sure that they are taken care of properly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More