Did the Court Grant Parental Responsibility to a Grandparent Following the Tragic Death of a Parent?

Based on the authentic Australian judicial case Alfarsi [2025] FedCFamC1F 406, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)
• Presiding Judge: The Honourable Justice Brasch
• Cause of Action: Application for Parenting Orders by a non-parent (maternal grandmother) following the death of the child’s mother.
• Judgment Date: 16 June 2025
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Parenting Orders
  • Keyword 3: Grandparent Carer
  • Keyword 4: Parental Responsibility
  • Keyword 5: Deceased Parent
  • Keyword 6: Best Interests of the Child

Background

This matter came before the Court’s Critical Incident List following the tragic death of a young mother, leaving her three-year-old child without a legally recognised parent or guardian. The child’s father was noted as “unknown” on the birth certificate, with no evidence of his identity or involvement in the child’s life. In this legal vacuum, the child’s maternal grandmother stepped forward to assume care, relocating her life to provide the child with a stable home and proximity to other family members. The proceedings were initiated by the grandmother to seek the legal authority necessary to make crucial decisions for the child’s welfare, education, and health.

Core Disputes and Claims

This case did not involve a dispute in the traditional sense between two opposing parties. Instead, it centred on a single critical issue: the formal legal appointment of a suitable carer to exercise parental responsibility for a child left without a legal parent.

The Applicant’s primary claim was for the Court to make final parenting orders granting her sole parental responsibility for her grandchild. This was sought to provide her with the legal authority to manage all aspects of the child’s life, from day-to-day care to major long-term decisions such as schooling, medical treatment, and obtaining a passport.

Chapter 2: Origin of the Case

The events leading to this application were sudden and tragic. The subject child, X, was born in 2021 to her mother, Ms B. The identity of X’s father was unknown, and he had no presence in her life. For a period, X and her mother resided with the child’s maternal grandfather, Mr E, in the ACT. However, the mother, Ms B, had a history of significant personal difficulties, which were documented in various child safety and police records across multiple states.

In early 2025, Ms B passed away unexpectedly. A coronial investigation later confirmed she died from a drug overdose. Her death left her young daughter, X, in a precarious legal position, with no parent to care for her or make decisions on her behalf.

In the immediate aftermath, a family consensus was reached that the most stable and nurturing environment for X would be with her maternal grandmother, the Applicant. Demonstrating profound commitment, the Applicant made the significant decision to relocate from Victoria to New South Wales. This move was not merely a change of address; it was a strategic decision to place X in close proximity to her maternal uncle and his young family, ensuring she would grow up surrounded by cousins of a similar age and maintain a strong connection to her mother’s family. Recognising that goodwill alone was insufficient to enrol a child in school, consent to medical procedures, or apply for a passport, the Applicant sought the Court’s intervention to formalise her role as X’s primary carer and grant her the necessary legal authority to act in the child’s best interests.

Chapter 3: Key Evidence and Core Disputes

As the matter was uncontested, the Court’s focus was on assessing the suitability of the Applicant’s proposed arrangements and ensuring they were in the child’s best interests.

Applicant’s Main Evidence and Arguments

• Initiating Application and Affidavits: The Applicant filed two affidavits detailing her capacity to care for the child, her deep emotional bond with her grandchild, and the practical steps she had taken to provide a stable home. This included evidence of her relocation to New South Wales to be near extended family.
• Lack of Other Carers: The evidence clearly established that the child’s mother was deceased and the father was unknown and uninvolved. This created the legal necessity for the Court to appoint a suitable guardian.
• Family Support: The Applicant presented evidence that her plan was fully supported by the child’s maternal grandfather, Mr E, who confirmed his support both via email and by appearing before the Court.

Respondent’s Main Evidence and Arguments

• There was no respondent in these proceedings. However, the maternal grandfather, Mr E, appeared and informed the Court that while he was a supportive figure in the child’s life, he was unable to assume full-time care. His position reinforced the Applicant’s proposal as the only viable and stable option for the child.

Core Dispute Points

The Court’s inquiry focused on satisfying itself on the following key points:
1. Suitability of the Applicant: Was the maternal grandmother a fit and proper person to be granted sole parental responsibility for the child?
2. Child’s Safety and Welfare: Were there any risks associated with the child living with the Applicant? The Court reviewed extensive reports from child safety authorities to confirm there were no current concerns.
3. Best Interests of the Child: Would the proposed orders provide the child with the stability, care, and family connection necessary for her emotional and physical development, particularly in the wake of losing her mother?

Chapter 4: Statements in Affidavits

In proceedings of this nature, an affidavit serves as the primary vehicle for presenting evidence to the Court. It is a sworn written statement of facts that allows a party to tell their story and provide the factual foundation for the orders they seek.

In this case, the Applicant’s affidavits were crucial. They would have detailed her relationship with her late daughter and her grandchild, X. They would have set out the circumstances of her daughter’s death and explained how she came to be the primary carer for X. The affidavits likely contained undertakings regarding her commitment to the child’s long-term welfare, including her plans for schooling, housing, and facilitating the child’s relationship with other family members, such as her grandfather and uncle. By presenting this information in a sworn document, the Applicant provided the Judge with the formal evidence needed to assess her capacity and dedication as a carer, allowing the Court to make orders with confidence that the child’s best interests were being met.

Chapter 5: Court Orders

Before making its final determination, the Court made several key procedural orders to ensure all relevant information was available and all interested parties had an opportunity to be heard. At the first court hearing, interim orders were made granting the Applicant day-to-day care of the child to ensure immediate stability.

Crucially, the Court also made an order giving the child’s maternal grandfather, Mr E, the opportunity to formally join the proceedings as a party and seek orders if he wished. This step was vital to ensure procedural fairness and to confirm that there were no competing proposals for the child’s care.

Additionally, the Court issued requests pursuant to section 67ZBD of the Family Law Act 1975 (Cth) for information from child safety authorities and police in the ACT, Victoria, and New South Wales. This was done to obtain a comprehensive picture of the family’s history and to ensure there were no undisclosed risks that might affect the child’s safety in the Applicant’s care. The fact that these reports, once received, showed no ongoing concerns was a key factor in the Court’s final decision.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The final hearing was not an adversarial showdown but a careful and methodical judicial inquiry. With the Applicant appearing as a self-represented litigant and the maternal grandfather appearing in support, the atmosphere was one of solemn cooperation focused on securing a stable future for a vulnerable child.

The central task for Justice Brasch was not to resolve a conflict, but to satisfy the Court that the proposed orders were unequivocally in X’s best interests. His Honour carefully reviewed the documentary evidence, including the Applicant’s affidavits and the reports from various child safety departments. These reports, while noting the late mother’s history of substance abuse and other difficulties, crucially confirmed that there were no current protection concerns for X while in the care of her grandmother.

The Judge engaged directly with the Applicant and the maternal grandfather, who joined the hearing via video link. This interaction allowed the Court to assess their characters, their commitment to the child, and the practicalities of their proposed arrangements. His Honour took the parties through the more concerning aspects of the historical reports, ensuring they were understood and acknowledged. This process confirmed that both grandparents were fully aware of the family’s past challenges and were united in their focus on providing X with a safe and nurturing future. The grandfather’s explicit support for the grandmother’s application, and his recognition of her as the most suitable full-time carer, carried significant weight. The judicial reasoning culminated in the view that the evidence overwhelmingly pointed to one conclusion: the Applicant was a loving, committed, and capable carer.

The Court’s conclusion on this point was clear:

I have no doubt as she grows and develops that her two grandparents will both have the capacity to provide for her needs as they emerge.

This statement encapsulates the Court’s confidence in the family’s ability to care for the child. It was not a judgment based on resolving competing claims, but on affirming a clear and positive path forward for a child who had suffered a profound loss.

Chapter 7: Final Judgment of the Court

Having been satisfied that the proposed arrangements were in the child’s best interests, the Court made the following final orders:

1. That the child, X, live with the Applicant, Ms Alfarsi.
2. That the Applicant be granted sole parental responsibility for all major long-term decisions concerning the child, including education, health, religious upbringing, and dealings with government agencies like Medicare and the Passport Office.
3. That the Applicant must inform the maternal grandfather by email after making any major long-term decision.
4. That the Applicant has responsibility for all day-to-day decisions.
5. That the child spend time with her maternal family, including the grandfather, as agreed between the Applicant and those family members.
6. That the Applicant is granted leave to publish the orders to service providers (such as schools and doctors) to prove her legal authority.
7. That the orders provide authority for the Applicant to schedule and consent to treatment and services for the child.
8. That the Applicant is permitted to take the child overseas.
9. That the Applicant is authorised to apply for and obtain an Australian Passport for the child.
10. That the Applicant has liberty to apply to the Court via Chambers to amend the wording of the orders if any service provider has difficulty interpreting them (the “slip rule”).

The Court also noted that the maternal grandfather, while not a party, had appeared and did not oppose the orders.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This case provides a clear roadmap for how the Court exercises its protective jurisdiction when a child is left without a legal parent. The Applicant’s success was not accidental; it was built upon a foundation of clear evidence, proactive steps, and an unwavering focus on the child’s best interests.

Special Analysis

The jurisprudential value of this judgment lies in its demonstration of the Federal Circuit and Family Court’s function on the Critical Incident List. This is not a forum for drawn-out adversarial battles but a mechanism for swift judicial intervention to protect vulnerable children. The Court acted decisively to fill a legal vacuum created by tragedy, ensuring the child’s carer had the immediate legal authority needed to provide effective care. The judgment underscores that where there is a clear, safe, and supported plan presented by a non-parent, and no other party is contesting the arrangement, the Court will act efficiently to formalise it.

Judgment Points

A particularly noteworthy aspect of the judgment is Order 10, the “slip rule” provision. This is a highly practical and thoughtful inclusion by Justice Brasch. It acknowledges that self-represented litigants may face bureaucratic hurdles with service providers (e.g., banks, schools, government agencies) who may struggle to interpret court orders. By creating a simplified, administrative path for the Applicant to seek minor amendments to the wording without returning to court for a full hearing, the Judge proactively minimised future stress and expense for the family. This demonstrates a judiciary that is not only concerned with legal principle but also with the real-world application and efficacy of its orders.

Legal Basis

The Court’s decision was anchored in Part VII of the Family Law Act 1975 (Cth). The paramount consideration was the child’s best interests, as mandated by section 60CA. The Judge systematically worked through the relevant factors listed in section 60CC(2), which include the child’s safety, developmental needs, and the capacity of the carer to meet those needs. The granting of sole parental responsibility to a non-parent was made possible under section 61D and section 65D of the Act. Orders relating to international travel and passports were specifically empowered by section 65Y of the Family Law Act and section 11 of the Australian Passports Act 2005 (Cth).

Evidence Chain

The evidentiary chain was simple but compelling. The Applicant’s affidavits established her commitment and the stable environment she had created. The s 67ZBD reports from multiple child safety agencies acted as a crucial independent verification, confirming the absence of any current safety concerns. The supportive appearance of the maternal grandfather completed the picture, demonstrating a united family front. This combination of personal testimony, official records, and corroborating support from another family member left the Court with no doubt that the proposed orders were the best and only viable option for the child.

Judicial Original Quotation

In assessing the capacity of the applicant, the Court looked not just at the present moment but at the future, affirming its confidence in the family unit to navigate the challenges ahead. Justice Brasch’s assessment was holistic:

I have absolutely no doubt that Mr E and the applicant will do their best to give X a memory of her mother and a positive memory. X does not need to know about her mother’s difficulties until and unless it becomes important for her to know, but I cannot see that at any time in the future.

This statement is determinative because it shows the Court is satisfied that the proposed carers not only have the practical capacity to raise the child, but also the emotional intelligence to manage the profound grief and complex family history in a way that protects the child’s psychological wellbeing. It affirms that their focus is correctly placed on the child’s future, not the tragedies of the past.

Analysis of the Losing Party’s Failure

There was no losing party in this matter. The success of the application can be attributed to several key factors that serve as a model for similar cases:
* Proactive and Child-Focused Action: The Applicant did not wait for a crisis to develop. She immediately took steps to provide care and then sought to formalise that arrangement legally.
* Demonstrated Commitment: Her decision to relocate her life to be near other family members was powerful evidence of her dedication to the child’s welfare.
* United Family Front: The open support of the maternal grandfather demonstrated to the Court that there was a cohesive family network working together for the child’s benefit, rather than internal conflict.
* Transparency: The Applicant did not shy away from the family’s difficult history, allowing the Court to address all potential issues openly and conclude that they did not pose a current risk to the child.

Implications

1. Act Decisively After a Family Tragedy: When a child is left without a legal guardian, time is of the essence. Non-parent carers, such as grandparents, should seek legal advice immediately to understand the process for obtaining parenting orders to avoid future complications with schools, doctors, and government agencies.
2. The Court’s Primary Goal is Stability for the Child: In uncontested matters involving the death of a parent, the Court’s role is primarily protective. Its goal is to swiftly implement a safe and stable legal framework that allows the child’s life to continue with minimal disruption.
3. Family Unity is Powerful Evidence: A united front from the extended family is incredibly persuasive. When family members support a single, child-focused plan, it gives the Court immense confidence that the proposed arrangement is in the child’s best interests.
4. Parental Responsibility is a Practical Necessity: This case demonstrates that parental responsibility is not just a title. It is the legal key that unlocks access to essential services like healthcare, education, and even the ability to travel, which are fundamental to a child’s upbringing.
5. Be Prepared to Reorganise Your Life: The Applicant’s willingness to relocate her life sent a powerful message to the Court about her commitment. In family law, actions often speak louder than words, and demonstrating a willingness to make significant personal sacrifices for a child’s welfare is highly compelling.

Q&A Session

• 1. Why wasn’t the maternal grandfather also given parental responsibility?
  The grandfather indicated to the Court that while he is a supportive and important figure in the child’s life, he was not in a position to take on the responsibilities of a full-time carer. The law seeks to reflect the practical reality of a child’s living situation. Since the grandmother was the one providing daily care and had relocated her life for this purpose, it was most appropriate for her to hold parental responsibility. The order requiring her to inform the grandfather of major decisions ensures he remains involved.

• 2. What would have happened if the child’s father was known but had not been involved?
  The Court would have been obligated to make all reasonable attempts to locate and notify him of the proceedings. If found, he would have had the right to participate and potentially seek parenting orders himself. If he could not be found or chose not to participate after being notified, the Court could have proceeded to make orders in his absence, provided it was satisfied that doing so was in the child’s best interests. The process would have been more complex and lengthy.

• 3. Why did the Court need to make specific orders about passports and Medicare, rather than just a general “parental responsibility” order?
  Government agencies and other institutions often have very strict rules requiring specific authorisation. A general order for parental responsibility can sometimes be misinterpreted by bureaucratic staff. By making explicit orders authorising the Applicant to obtain a passport, deal with Medicare, and publish the orders to service providers, the Court removes any ambiguity and ensures the Applicant can navigate these systems smoothly without being challenged on her legal authority. This is a practical measure to prevent future difficulties for the family.

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Parenting Orders – Application by a Non-Parent (Grandparent)
• Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test (Existence of De Facto Relationship – Section 4AA)

• Duration of the relationship: (General rule: 2 years, unless exceptions apply).
• Nature and extent of common residence: (Did they live together? Was it continuous?).
• Whether a sexual relationship exists: (Or existed).
• Degree of financial dependence or interdependence: (Any financial support arrangements?).
• Ownership, use and acquisition of property: (Joint names or separate?).
• Degree of mutual commitment to a shared life: (Was it casual or committed?).
• The care and support of children.
• Reputation and public aspects of the relationship: (Did family/friends view them as a couple?).

Property Settlement – The Four-Step Process

1. Identification and Valuation: Determine the net asset pool (assets minus liabilities).
2. Assessment of Contributions: Financial contributions (initial, during relationship), Non-financial contributions (renovations), and Contributions to the welfare of the family (homemaker/parenting duties).
3. Adjustment for Future Needs (s 75(2) Factors): Consideration of age, health, income earning capacity, care of children, and standard of living.
4. Just and Equitable: The final sanity check—is the proposed division fair in all the circumstances?

Parenting Matters (Section 60CC of the Family Law Act 1975)

• Primary Considerations: The benefit to the child of having a meaningful relationship with both parents VS The need to protect the child from physical or psychological harm (Harm is given greater weight).
• Additional Considerations: The views of the child (depending on maturity), the capacity of parents to provide for needs, practicalities/expense of spending time.

3. Equitable Remedies and Alternative Claims

While not central to this specific parenting case, equitable claims are vital in other family law contexts, particularly those involving property disputes where a formal marriage or a legally recognised de facto relationship does not exist.

If dealing with [Civil / Commercial / Property / Family / Estate] matters:

• Promissory / Proprietary Estoppel:
  • Did the other party make a clear and unequivocal promise or representation (e.g., “this property will be yours”)?
  • Did you act in detrimental reliance on that promise (e.g., renovating the property, resigning from a job)?
  • Would it be unconscionable for the other party to resile from that promise?
  • Result Reference: Even without a written contract, Equity may “estop” the other party from going back on their word.
• Unjust Enrichment / Constructive Trust:
  • Has the other party received a benefit (money or labor) at your expense? Is it against conscience for them to retain that benefit without payment?
  • Result Reference: The Court may order the restitution of the benefit or declare that you hold a beneficial interest in the asset via a Constructive Trust.

4. Access Thresholds and Exceptional Circumstances

In parenting matters, the primary threshold is the “best interests of the child,” and there are no strict time limits for bringing an application. However, other areas of family law have hard thresholds.

Regular Thresholds

• To bring a property claim, parties to a de facto relationship must generally have been together for at least two years.

Exceptional Channels (Crucial)

• Family Law: Less than 2 years of cohabitation? → An exemption may be available pursuant to Section 90SB of the Family Law Act if there is a child of the relationship or if the applicant has made substantial contributions and a failure to make the order would result in serious injustice.
• Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case.

5. Guidelines for Judicial and Legal Citation

Citation Angle

• It is recommended to cite this case in legal submissions or debates involving applications for parenting orders by non-parents, particularly in circumstances where a parent is deceased and the other parent is unknown or uninvolved. It serves as a clear example of the Court applying the best interests principles on its Critical Incident List.

Citation Method

• As Positive Support: When your matter involves a non-parent carer seeking parental responsibility in a stable, uncontested environment, citing this authority can strengthen the argument for making swift and decisive final orders to provide certainty for the child.
• As a Distinguishing Reference: If an opposing party attempts to delay proceedings, this case can be used to argue that where there are no safety concerns and a clear, child-focused plan exists, prolonged litigation is contrary to the child’s best interests.

Anonymisation Rule

• Do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent or Appellant / Respondent.

Conclusion

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Alfarsi [2025] FedCFamC1F 406), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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