If a parenting order states that a child is to live with one parent and that parent dies, and the parenting order does not say what is to happen in the event of that parent's death, the child will not be required to live with the surviving parent [see Family Law Act 1975 (Cth) s 65K]. A parent can appoint someone else to take over as guardian of the child in the event of their death, but this is not in any way binding either, and will merely be taken as an expression of the deceased parent’s wishes.

In the event of a dispute, the surviving parent (or another person such as a relative or friend of the deceased parent who is acting as guardian) may make an application to the Federal Circuit and Family Court to determine this and any other issues. The application will be decided in the same way as any other, on the basis of all of the circumstances at the time, and with the child's best interests as the paramount consideration.

The Court has established a Critical Incident List to fast-track applications by a non-parent carer where there is no parent available to care for the children as a result of the death, critical injury or incarceration (relating to or resulting from a family violence incident) of the parents. For more information, see the Family Law Practice Direction: Critical Incident List.