Guardian of Orphaned Children (Australia and UK)

[Matthew J]

Hi

During COVID we have looked at our wills, not been done since migrated and we have an extra child.

I have two queries.

Both my wife and I die: We give guardianship of our two children (under 18) to my wifes sister who lives in the UK and has 3 children (she is divorced but more on that later).  Would she and her dependent children be eligible to come and reside in Australia if both my kids were under 18 or if one was over 18 and one still a minor.

My wife's sister (in the UK) dies and makes us guardians.  Can the kids come and live with us here.  The father of the children is still alive but we believe he would not want to look after the kids unless he got the money left to the kids (which my sister-in-law) is adamant he will not get.  Complicated situation but I'm sure not unique.

Any advice out there, I just want a general view before we right up our Will, if its too complex we may approach an Australian based friend.

 

 

[Tulip1]

1 hour ago, Matthew J said:

Hi

During COVID we have looked at our wills, not been done since migrated and we have an extra child.

I have two queries.

Both my wife and I die: We give guardianship of our two children (under 18) to my wifes sister who lives in the UK and has 3 children (she is divorced but more on that later).  Would she and her dependent children be eligible to come and reside in Australia if both my kids were under 18 or if one was over 18 and one still a minor.

My wife's sister (in the UK) dies and makes us guardians.  Can the kids come and live with us here.  The father of the children is still alive but we believe he would not want to look after the kids unless he got the money left to the kids (which my sister-in-law) is adamant he will not get.  Complicated situation but I'm sure not unique.

Any advice out there, I just want a general view before we right up our Will, if its too complex we may approach an Australian based friend.

 

 

I’d definitely run it past an expert if I was you but this is my thoughts.  I don’t think the sister in law and her kids would be able to move over to Oz.  If she could, she would need her ex’s permission to take the kids but I can’t imagine a family would just get a visa because you’ve requested they look after your children in event of your death. I assume your kids have UK citizenship, if so I’d imagine they would return to live with her.  The second question of yours is if she dies.  Firstly in law,  although she can request you to be their guardian in her will, if the children’s father wanted them he would get them. Unless proven unfit, a natural parent would get the kids over another regardless to what the deceased parent puts in a will. In a will we can leave things to others and that will be honoured but only something we own. As we don’t own children, it is just a request. She can put that’s what she’d like but they wouldn’t be moving to live with you unless their father agreed. Whether or not they’d get a visa to move to you should he agree I’m not sure.  I guess that’s the same scenario as your first question. If she dies your talking about her kids moving to you, if you die it would be your kids moving to her. The bit about the father getting the kids money. If she’s left them money in her will it would be held in trust for them until they reach a certain age so he wouldn’t be able to use their money. However,  a parent can make a request to the trustee (whoever is looking after the kids money, often the executor of the will but not always) for some financial help from the kids money. Not to pay the rent but for things for the kids like school trips, clothes and anything that the kids would benefit from directly and not have unless some of the money from the trust is used.  So in answer, he could potentially get to some of the money but for the benefit of them. I guess in these situations the parent left behind will not be getting any financial help from the other parent by way of maintenance so may need some help in raising the kids. If the kid can only go on that expensive residential school trip if the trustee releases some money for it then that is perhaps what the deceased parent would be ok with. Either way the parent can request it from the trustee. 
 

I would speak to a family lawyer or probably a migrant agent as they are the ones who could answer your question about whether her and her kids could move to Australia.  Really, that’s the only thing that needs clarifying as the other things are all subject to what her kids father decides if she dies (or if he’d agree to his kids moving to Oz if permitted in the event of your death) and that you can’t change or have any impact on. 

[Matthew J]

Hi thanks for the response Tulip.  I think you responded with what I thought as well

I did send a query to a migration agent and not surprisingly they said please arrange an appointment and give me  then we can talk.

Was after any advice from people who maybe had been in that situation 1st before coughing up.

Cheers

[Tulip1]

12 minutes ago, Matthew J said:

Hi thanks for the response Tulip.  I think you responded with what I thought as well

I did send a query to a migration agent and not surprisingly they said please arrange an appointment and give me  then we can talk.

Was after any advice from people who maybe had been in that situation 1st before coughing up.

Cheers

The thing is even if people have been in that situation, you are assuming they have it right. I bet lots of people put things in a will that they don’t realise actually won’t stand up.  I only know about the other parent getting the kids over any guardianship requested in a will because someone close to me was told that by a solicitor when they wanted to add that. It makes sense really but people don’t necessarily think about it. Of course another person wouldn’t get the kids over a natural parent.  

For something so important, I’d pay the small fee for expert advice.  Eighteen  months ago, I paid an agent to answer something I needed clarification on.  I was quite sure what I thought was right and it turned out it was but I didn’t want to chance it. It was too important to get wrong.  I spent a few hundred pounds for peace of mind that my understanding was right and it was so worth it. I could then stop thinking about it and move on. 
 

[paulhand]

1 hour ago, Matthew J said:

Hi thanks for the response Tulip.  I think you responded with what I thought as well

I did send a query to a migration agent and not surprisingly they said please arrange an appointment and give me  then we can talk.

Was after any advice from people who maybe had been in that situation 1st before coughing up.

Cheers

This is a complex question and @Tulip1 has made some useful suggestions. As mentioned, there are two separate sets of issues here and you would be well served to get some professional advice on both the migration and the family law aspects of it. 

[Marisawright]

I don’t think a migration agent is the right person to ask. I’d say you need a lawyer who is experienced in international laws regarding guardianship, and that would mean big dollars. 

I cant see any way that your sister-in-law would get a PR visa to Australia to look after your kids, when your kids could so easily move to the UK.

If she died, Australia would not allow her children to enter the country without the written permission of their father. And, judging by posts I’ve seen from parents trying to bring over an adopted child, it would not be an easy process

[Matthew J]

Thanks everyone.  The family law bit my sister-in-law is looking into.  I think we will chat to migration agent about the other.