Status of Children amazonaws com
Status of Children History • • • •
In the last 30 years the law has changed dramatically. In early times, the law failed to recognise any relationship between ex-nuptial children and their parents. In the 1970s legislation was introduced to reduce this disadvantage to ex-nuptial children. Note: at common law a child was deemed to be legitimate if born to a married woman and this strong presumption could only be rebutted with proof beyond reasonable doubt. Now the civil burden of proof applies. The current Act is the Status of Children Act 1996 (NSW). Also, amendments were made to the FLA so that the position of ex-nuptial children is similar to that of children whose parents are or were married. These provisions displace the NSW provisions in some ways because of s 109 of the Constitution.
Blackstone • A bastard under English laws is where a child is born out of lawful matrimony. This was done to know what child is legitimate so it can be known who is to take care of the child. It was meant to prevent fraud and partialities. Roman law allowed bastard children to be legitimised if their parents later married and this could be for the desire to procreate lawful heirs. A bastard can inherit nothing and can therefore have no heirs- he is kin to nobody. Cretney and Masson • At common law a child was only legitimate if his parents were married when he was born or conceived. They were born filius nullius and not legal relationship was recognised with anyone. • Later the definition of illegitimate was narrowed as parents could marry after the child was born to be legitimised and recognising some children from void marriages. Rights accorded to legitimate children were extended to illegitimate children and the law of inheritance was changed so that they could claim under a will.
Legitimisation of children S 91 if the Marriage Act • A child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his parents as from his birth or the commencement of this Act, whichever one was later. 1) Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate
2) 3) 4)
child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid. Subsection (1) does not apply unless one of the parents of the child was domiciled in Australia at the time of the birth of the child or, having died before that time, was domiciled in Australia immediately before his or her death. Subsection (1) applies in relation to a child whether the child was born before or after the commencement of this Act, whether the ceremony of marriage took place before or after the commencement of this Act and whether the ceremony of marriage took place in or outside Australia. This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the birth of the child or the commencement of this Act, whichever was the later.
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Section 89 Marriage Act 1961 (Cth) Legitimation by virtue of marriage of parents 1) A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later. 2) Subsection (1) applies in relation to a child whether or not there was a legal impediment to the marriage of his or her parents at the time of his or her birth and whether or not the child was still living at the time of the marriage or, in the case of a child born before the commencement of this Act, at the commencement of this Act. 3) Subsection (1) does not apply in relation to a child unless: (a) at the time of the marriage of the child's parents: (i) where that marriage took place before the commencement of section 24 of the Marriage Amendment Act 1985 --the child's father was domiciled in Australia; or (ii) in any other case--one of the child's parents was domiciled in Australia; or (b) the marriage of the child's parents took place in Australia, or outside Australia under Part V of this Act or under the Marriage (Overseas) Act 1955 . 4) Nothing in this section renders ineffective any legitimation that took place before the commencement of this Act by or under a law of a State or Territory or shall be taken to exclude the continued operation of such a law in relation to such a legitimation. 5) This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the marriage of the parents of the child or the commencement of this Act, whichever was the later.
Conflicts of laws • • •
A person’s legitimacy may involve a foreign element, as where some form of legitimisation was carried out in another country whose laws recognised it as effective. Some cases are covered by s 90 of the Marriage Act but this does not deal with the legitimisation under foreign law by a process other than the intermarriage of the child’s parents. In general a court will recognise a foreign legitimisation if the child’s father is domiciled in the relevant country.
Section 90 Marriage Act Legitimacy of children of certain foreign marriages 1) Where: a) the parents of a child born illegitimate have married each other or the parents of a child born in a place the law of which did not recognise the status of illegitimacy have married each other; b) the marriage took place outside Australia; c) neither parent of the child was domiciled in Australia at the time of the marriage; and d) the law of the place where a parent of the child was then domiciled did not recognise the status of illegitimacy or, if the law of the place where a parent of the child was then domiciled did recognise that status, the child was, by that law, legitimated by virtue of the marriage; the child is for all purposes the legitimate child of his or her parents as from the time of the marriage or the commencement of section 25 of the Marriage Amendment Act 1985 , whichever was the later. 2) Where the relationship of a child and his or her father and mother is, for the purposes of the law of a place, required by a law in force in that place to be determined irrespective of whether or not the father and mother are or have been married to each other, the law of that place shall, for the purposes of this section, be taken not to recognise the status of illegitimacy. 2
Status of Children Act 1996 (NSW) Section 3 Definitions "Fertilisation procedure" means: a) the artificial insemination of a woman, or b) the procedure of transferring to a woman’s body an ovum (whether or not produced by her) fertilised outside her body, or c) the procedure of transferring to a woman’s body an ovum (whether or not produced by her) or both the ovum and sperm to enable fertilisation of the ovum to occur in her body, or d) any other procedure for the assisted conception of children that is prescribed by the regulations. Section 5 All children are of equal status – no more fillius nullius 1) For the purposes of any law of the State by or under which the relationship between any person and the person’s father and mother (or either of them) arises, that relationship and any other relationship (whether of consanguinity or affinity) between the person and another person is to be determined regardless of whether the person’s parents are or have been married to each other. 2) This section is subject to sections 6 and 7. Section 6 – dispositions of property Unless a contrary intention appears, any property disposition which refers to an ex-nuptial child of whom that person is a parent or the words ‘legitimate’ or ‘lawful’ when used in reference to a child or children is void as being contrary to public policy. Section 8 – rights of ‘exnuptial’ children and their relatives on intestacy If any relative of an ex-nuptial child dies, the ex-nuptial child is entitled to take any interest in the property that they would have been entitled to take had their parents been married to each other when the child was born. Establishing parenting rebuttable presumptions S 9 – a child born to a woman during a marriage is presumed to be a child of the woman and her husband/her deceased husband S 10 – a child born to a woman is presumed to be a man’s child if they cohabitated 20-44 weeks they cohabited before the birth. S 11 – presumption of parentage arising if a person’s name is entered as the child’s parent at register of births. S 12 – Presumption of parentage arising from a finding of a court. Cannot be rebutted unless the finding is altered or set aside. S 13- Presumption of parentage arising from form paternity acknowledgments S 14 Presumptions of parentage arising out of use of fertilisation procedures • (1) Husband is presumed to be the father of any child born even if he did not provide the sperm and only consented to the procedure. • (1A) states that a woman in a de-facto relationship with another woman that has undergone IVF = the other woman is presumed to be the parent only if they consented to the procedure and even if the woman who became pregnant was provided eggs. • (2) man who donates sperm for IVF is not presumed to be the father. • (3) If a woman donates an ovum to another woman to become pregnant, the donor is not presumed to be the mother of any child born. 3
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(4) these presumptions are irrebuttable (from 1-3). (6) in this section reference to a married woman, includes a reference to a woman in a defacto relationship with a person of the opposite sex
S 15 to rebut parentage presumption proof on the balance of probabilities is required. S 17 – if there is conflict of irrebutable presumptions then the most correct or most likely to the court will prevail S 20 A formal paternity acknowledgment can only be annulled by order of the Supreme Court. 21 Applications for declarations in the Supreme Court 1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section: a) a person who alleges that the relationship of parent and child exists between the person’s child and any named person, or b) a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or c) the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or e) a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or f) a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person. 2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child’s parent. 3) A declaration of parentage may be made: a) whether or not the parent or the child (or both) are alive, or b) whether or not the child has been born. 4) If a declaration of parentage is made, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995 . 22 Annulment of declaration of parentage 1) The Supreme Court may make an order annulling a declaration of parentage on the application of any person who applied or could have applied for the making of the declaration if it appears to the Court: a) that new facts or circumstances have arisen that have not previously been disclosed to the Court, and b) those facts could not, by the exercise of reasonable diligence, have previously been disclosed to the Court. 2) On the making of such an order, the declaration ceases to have effect from that time. Accordingly, the annulment does not affect anything done in reliance on the declaration before the making of the order. 3) If the Court makes such an order, it may, if it thinks that it would be just and equitable to do so, make such ancillary orders (including orders varying property rights) as may be necessary to place any person affected by the annulment of the declaration, as far as 4
In the last 30 years the law has changed dramatically. In early times, the law failed to recognise any relationship between ex-nuptial children and their parents. In the 1970s legislation was introduced to reduce this disadvantage to ex-nuptial children. Note: at common law a child was deemed to be legitimate if born to a married woman and this strong presumption could only be rebutted with proof beyond reasonable doubt. Now the civil burden of proof applies. The current Act is the Status of Children Act 1996 (NSW). Also, amendments were made to the FLA so that the position of ex-nuptial children is similar to that of children whose parents are or were married. These provisions displace the NSW provisions in some ways because of s 109 of the Constitution.
Blackstone • A bastard under English laws is where a child is born out of lawful matrimony. This was done to know what child is legitimate so it can be known who is to take care of the child. It was meant to prevent fraud and partialities. Roman law allowed bastard children to be legitimised if their parents later married and this could be for the desire to procreate lawful heirs. A bastard can inherit nothing and can therefore have no heirs- he is kin to nobody. Cretney and Masson • At common law a child was only legitimate if his parents were married when he was born or conceived. They were born filius nullius and not legal relationship was recognised with anyone. • Later the definition of illegitimate was narrowed as parents could marry after the child was born to be legitimised and recognising some children from void marriages. Rights accorded to legitimate children were extended to illegitimate children and the law of inheritance was changed so that they could claim under a will.
Legitimisation of children S 91 if the Marriage Act • A child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his parents as from his birth or the commencement of this Act, whichever one was later. 1) Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate
2) 3) 4)
child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid. Subsection (1) does not apply unless one of the parents of the child was domiciled in Australia at the time of the birth of the child or, having died before that time, was domiciled in Australia immediately before his or her death. Subsection (1) applies in relation to a child whether the child was born before or after the commencement of this Act, whether the ceremony of marriage took place before or after the commencement of this Act and whether the ceremony of marriage took place in or outside Australia. This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the birth of the child or the commencement of this Act, whichever was the later.
1
Section 89 Marriage Act 1961 (Cth) Legitimation by virtue of marriage of parents 1) A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later. 2) Subsection (1) applies in relation to a child whether or not there was a legal impediment to the marriage of his or her parents at the time of his or her birth and whether or not the child was still living at the time of the marriage or, in the case of a child born before the commencement of this Act, at the commencement of this Act. 3) Subsection (1) does not apply in relation to a child unless: (a) at the time of the marriage of the child's parents: (i) where that marriage took place before the commencement of section 24 of the Marriage Amendment Act 1985 --the child's father was domiciled in Australia; or (ii) in any other case--one of the child's parents was domiciled in Australia; or (b) the marriage of the child's parents took place in Australia, or outside Australia under Part V of this Act or under the Marriage (Overseas) Act 1955 . 4) Nothing in this section renders ineffective any legitimation that took place before the commencement of this Act by or under a law of a State or Territory or shall be taken to exclude the continued operation of such a law in relation to such a legitimation. 5) This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the marriage of the parents of the child or the commencement of this Act, whichever was the later.
Conflicts of laws • • •
A person’s legitimacy may involve a foreign element, as where some form of legitimisation was carried out in another country whose laws recognised it as effective. Some cases are covered by s 90 of the Marriage Act but this does not deal with the legitimisation under foreign law by a process other than the intermarriage of the child’s parents. In general a court will recognise a foreign legitimisation if the child’s father is domiciled in the relevant country.
Section 90 Marriage Act Legitimacy of children of certain foreign marriages 1) Where: a) the parents of a child born illegitimate have married each other or the parents of a child born in a place the law of which did not recognise the status of illegitimacy have married each other; b) the marriage took place outside Australia; c) neither parent of the child was domiciled in Australia at the time of the marriage; and d) the law of the place where a parent of the child was then domiciled did not recognise the status of illegitimacy or, if the law of the place where a parent of the child was then domiciled did recognise that status, the child was, by that law, legitimated by virtue of the marriage; the child is for all purposes the legitimate child of his or her parents as from the time of the marriage or the commencement of section 25 of the Marriage Amendment Act 1985 , whichever was the later. 2) Where the relationship of a child and his or her father and mother is, for the purposes of the law of a place, required by a law in force in that place to be determined irrespective of whether or not the father and mother are or have been married to each other, the law of that place shall, for the purposes of this section, be taken not to recognise the status of illegitimacy. 2
Status of Children Act 1996 (NSW) Section 3 Definitions "Fertilisation procedure" means: a) the artificial insemination of a woman, or b) the procedure of transferring to a woman’s body an ovum (whether or not produced by her) fertilised outside her body, or c) the procedure of transferring to a woman’s body an ovum (whether or not produced by her) or both the ovum and sperm to enable fertilisation of the ovum to occur in her body, or d) any other procedure for the assisted conception of children that is prescribed by the regulations. Section 5 All children are of equal status – no more fillius nullius 1) For the purposes of any law of the State by or under which the relationship between any person and the person’s father and mother (or either of them) arises, that relationship and any other relationship (whether of consanguinity or affinity) between the person and another person is to be determined regardless of whether the person’s parents are or have been married to each other. 2) This section is subject to sections 6 and 7. Section 6 – dispositions of property Unless a contrary intention appears, any property disposition which refers to an ex-nuptial child of whom that person is a parent or the words ‘legitimate’ or ‘lawful’ when used in reference to a child or children is void as being contrary to public policy. Section 8 – rights of ‘exnuptial’ children and their relatives on intestacy If any relative of an ex-nuptial child dies, the ex-nuptial child is entitled to take any interest in the property that they would have been entitled to take had their parents been married to each other when the child was born. Establishing parenting rebuttable presumptions S 9 – a child born to a woman during a marriage is presumed to be a child of the woman and her husband/her deceased husband S 10 – a child born to a woman is presumed to be a man’s child if they cohabitated 20-44 weeks they cohabited before the birth. S 11 – presumption of parentage arising if a person’s name is entered as the child’s parent at register of births. S 12 – Presumption of parentage arising from a finding of a court. Cannot be rebutted unless the finding is altered or set aside. S 13- Presumption of parentage arising from form paternity acknowledgments S 14 Presumptions of parentage arising out of use of fertilisation procedures • (1) Husband is presumed to be the father of any child born even if he did not provide the sperm and only consented to the procedure. • (1A) states that a woman in a de-facto relationship with another woman that has undergone IVF = the other woman is presumed to be the parent only if they consented to the procedure and even if the woman who became pregnant was provided eggs. • (2) man who donates sperm for IVF is not presumed to be the father. • (3) If a woman donates an ovum to another woman to become pregnant, the donor is not presumed to be the mother of any child born. 3
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(4) these presumptions are irrebuttable (from 1-3). (6) in this section reference to a married woman, includes a reference to a woman in a defacto relationship with a person of the opposite sex
S 15 to rebut parentage presumption proof on the balance of probabilities is required. S 17 – if there is conflict of irrebutable presumptions then the most correct or most likely to the court will prevail S 20 A formal paternity acknowledgment can only be annulled by order of the Supreme Court. 21 Applications for declarations in the Supreme Court 1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section: a) a person who alleges that the relationship of parent and child exists between the person’s child and any named person, or b) a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or c) the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or e) a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or f) a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person. 2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child’s parent. 3) A declaration of parentage may be made: a) whether or not the parent or the child (or both) are alive, or b) whether or not the child has been born. 4) If a declaration of parentage is made, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995 . 22 Annulment of declaration of parentage 1) The Supreme Court may make an order annulling a declaration of parentage on the application of any person who applied or could have applied for the making of the declaration if it appears to the Court: a) that new facts or circumstances have arisen that have not previously been disclosed to the Court, and b) those facts could not, by the exercise of reasonable diligence, have previously been disclosed to the Court. 2) On the making of such an order, the declaration ceases to have effect from that time. Accordingly, the annulment does not affect anything done in reliance on the declaration before the making of the order. 3) If the Court makes such an order, it may, if it thinks that it would be just and equitable to do so, make such ancillary orders (including orders varying property rights) as may be necessary to place any person affected by the annulment of the declaration, as far as 4
