When Guardianship Is Contested: How Victorian Courts Decide

Introduction: When a Guardian Nomination Is Not the Final Word

Nominating a guardian in your will is one of the most important steps any parent can take. We have written previously about why every Victorian parent needs a guardianship nomination and how to put one in place. But a nomination in a will is not a court order. It is a statement of parental wishes — and wishes can be challenged.

In 2026, contested guardianship remains one of the most emotionally fraught areas of law in Victoria. When a parent dies or becomes permanently incapacitated, and more than one person claims the right to raise the children, the matter moves from the domain of estate planning into the jurisdiction of the courts. Step-parents, grandparents, aunts and uncles, former partners, and even family friends may all assert that the children belong with them.

This post examines the legal framework that governs contested guardianship in Victoria, the overlapping roles of the Family Court of Australia and the Victorian courts, the legislation that applies, and the principles that ultimately determine the outcome.

The Legislative Framework: Three Statutes You Need to Know

Contested guardianship of children in Victoria sits at the intersection of three key pieces of legislation. Understanding which statute applies — and when — is essential.

Family Law Act 1975 (Cth)

The Family Law Act 1975 (Cth) is the primary Commonwealth statute governing parental responsibility for children. Part VII of the Act deals with children's matters, and section 61B defines "parental responsibility" as all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children. Under section 61C, each parent has parental responsibility for a child, and that responsibility is not diminished by changes in the parents' relationship.

Critically, section 60CA establishes the paramount consideration in any decision about a child: the best interests of the child. This principle overrides all other factors, including the wishes expressed in a deceased parent's will.

When a surviving biological parent exists, they ordinarily retain full parental responsibility regardless of any testamentary guardianship nomination. Disputes between a surviving parent and a nominated guardian are generally heard in the Federal Circuit and Family Court of Australia.

Children, Youth and Families Act 2005 (Vic)

The Children, Youth and Families Act 2005 (Vic) governs child protection proceedings in Victoria. Where the Department of Families, Fairness and Housing (DFFH) becomes involved — for instance, because both parents have died and no suitable carer has come forward, or because a child is at risk — the Children's Court of Victoria exercises jurisdiction under this Act.

Section 10 of the Act sets out the best interests principles for Victorian child protection proceedings. These include the need to protect the child from harm, the desirability of maintaining family relationships, and the importance of stability in a child's living arrangements.

Protection orders under Part 4.4 of the Act can place children with a specific person, and in some cases a guardianship-to-Secretary order under section 289 transfers guardianship to the Secretary of the department.

Guardianship and Administration Act 2019 (Vic)

While the Guardianship and Administration Act 2019 (Vic) primarily concerns adults who lack decision-making capacity, it is relevant where a parent's incapacity (rather than death) triggers a guardianship dispute. If a sole surviving parent suffers a catastrophic brain injury or is diagnosed with early-onset dementia, questions about who exercises day-to-day care of their children may intersect with applications under this Act and the appointment of guardians for the parent themselves. We discuss adult guardianship and powers of attorney in Victoria in a separate guide.

Who Can Apply for Guardianship — and Who Has Standing

Under the Family Law Act 1975 (Cth), any person concerned with the care, welfare, or development of a child may apply to the court for a parenting order (section 65C). This is deliberately broad. It means standing is not limited to biological parents. The following categories of applicants are common in contested guardianship matters:

• The surviving biological parent — who ordinarily retains parental responsibility by operation of law, even if the deceased parent's will nominates someone else.
• A testamentary guardian — the person nominated in the deceased parent's will, whose appointment does not take automatic legal effect but is given significant weight by the court.
• Grandparents — who frequently seek parenting orders, particularly where the surviving parent has a history of substance abuse, family violence, or estrangement from the child.
• Step-parents — who may have been the child's primary carer during the deceased parent's lifetime but have no automatic legal status after the parent's death.
• Other relatives or carers — including aunts, uncles, older siblings, or family friends who have played a significant role in the child's life.

The breadth of standing under section 65C means that contested guardianship proceedings can involve multiple parties, each with a legitimate but competing claim.

How the Court Decides: The Best Interests Test

The best interests of the child is the paramount consideration in every contested guardianship matter. Under section 60CC of the Family Law Act 1975 (Cth), the court must consider two primary considerations and a series of additional considerations.

The primary considerations are:

1. The benefit to the child of having a meaningful relationship with both parents (where applicable).
2. The need to protect the child from physical or psychological harm, including from family violence or abuse.

Where one parent has died, the first consideration shifts to the benefit of maintaining a meaningful relationship with the deceased parent's family and community.

The additional considerations under section 60CC(3) include:

• Any views expressed by the child, taking into account the child's maturity and understanding.
• The nature of the child's relationship with each proposed carer.
• The likely effect of any change in the child's circumstances, including separation from a sibling or a current carer.
• The practical difficulty and expense of a child spending time with a proposed carer, particularly where geographic distance is a factor.
• The capacity of each proposed carer to provide for the child's emotional and intellectual needs.
• Any family violence or family violence orders.
• The attitude of each proposed carer toward the child and the responsibilities of parenthood.

The court does not apply a rigid formula. Each case turns on its own facts. But in our experience, the factors that carry the greatest weight in contested guardianship matters are stability, the existing bond between child and carer, and the capacity to facilitate ongoing relationships with the deceased parent's family.

Common Contested Scenarios in Victoria

Testamentary Guardian vs Surviving Biological Parent

This is the most common contest. A deceased mother's will nominates her sister as guardian. The biological father, who may have had limited involvement during the child's life, asserts his parental responsibility under section 61C of the Family Law Act.

The law strongly favours the surviving biological parent. A testamentary nomination does not override the statutory presumption of parental responsibility. However, where the surviving parent poses a risk to the child — through violence, substance abuse, incarceration, or demonstrated incapacity — the court may make a parenting order in favour of the nominated guardian or another person.

Grandparents Seeking Guardianship

Grandparents have no automatic right to guardianship, but they frequently apply for parenting orders where both parents have died, or where the surviving parent is unable or unwilling to care for the child. The court will consider the existing relationship between grandparent and child, the grandparent's capacity to provide care (including health and age considerations), and whether the arrangement serves the child's best interests.

In Victoria, grandparent-led care arrangements are increasingly common, and the courts recognise the valuable role grandparents play. However, competing applications from younger relatives or nominated guardians can result in complex proceedings.

Step-Parents and De Facto Partners

A step-parent who has raised a child as their own for years may find themselves with no legal standing upon the death of their partner if the child's other biological parent is alive. The step-parent must apply to the court for a parenting order, demonstrating that they have a meaningful relationship with the child and that the child's best interests would be served by remaining in their care.

These cases are particularly difficult where the biological parent and step-parent have an adversarial relationship.

The Role of Independent Children's Lawyers

In contested guardianship proceedings, the court will often appoint an Independent Children's Lawyer (ICL) under section 68L of the Family Law Act 1975 (Cth). The ICL does not represent the child's wishes in the way a solicitor represents an adult client. Instead, the ICL forms an independent view of the child's best interests and presents evidence and submissions to the court accordingly.

The ICL will typically interview the child (if they are of sufficient age and maturity), review reports from family consultants, and speak with each proposed carer. The ICL's recommendation carries significant weight, though the court is not bound by it.

How Estate Planning Reduces the Risk of Contested Guardianship

While no estate plan can guarantee that a guardianship nomination will go unchallenged, a well-drafted plan significantly reduces the likelihood of a contest and strengthens the nominated guardian's position if one arises.

We recommend the following steps:

• Name a guardian in your will — and ensure the nomination is current. Review it whenever your family circumstances change. Our guardianship nomination guide explains the process.
• Provide written reasons — a letter of wishes explaining why you have chosen a particular guardian, and why you have not chosen others, can be compelling evidence in court proceedings.
• Discuss your wishes with family — contested guardianship often arises from surprise. If grandparents or former partners understand your reasoning, they may be less likely to challenge the nomination.
• Consider financial provision — a guardian who must also bear the financial burden of raising your children is at a disadvantage. Life insurance, superannuation nominations, and testamentary trusts can ensure the nominated guardian has the resources they need. We discuss some of these structures in our guide to estate planning for business owners, which covers asset protection strategies relevant to all parents.
• Appoint a backup guardian — if your primary nominee is unable or unwilling to act, a backup avoids a vacuum that invites competing claims.
• Keep your powers of attorney current — if incapacity rather than death triggers the guardianship question, having powers of attorney in place ensures someone you trust can act on your behalf while broader guardianship questions are resolved.

Acting Before a Dispute Arises

Contested guardianship proceedings are expensive, protracted, and deeply distressing for everyone involved — most of all the children. The average contested parenting matter in the Federal Circuit and Family Court takes twelve to eighteen months to resolve, and costs can run into tens of thousands of dollars on each side.

The single most effective step any parent can take is to put a comprehensive estate plan in place now — one that anticipates potential disputes and addresses them before they arise. A clear guardianship nomination, supported by written reasons and appropriate financial provision, is the strongest foundation.

If you are a Victorian parent and you have not yet addressed guardianship in your estate plan — or if you are concerned that your existing nomination may be challenged — we encourage you to book a free consultation with our team. We can help you build a plan that protects your children and minimises the risk of a contested guardianship application.

This article is general legal information only and does not constitute legal advice. It is current as at April 2026. SafeEstate Legal is a Victorian law practice specialising in estate planning, wills, and powers of attorney.