Someone recently bought our

students are currently browsing our notes.

X

Status Of Children Notes

Law Notes > Family Law Notes

This is an extract of our Status Of Children document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1 of 26

FL 4 Status of Children 1 of 26

FL 4 Status of Children Table of Contents

A child born illegitimate may be 'legitimated' in Australia by the subsequent intermarriage of his or her parents under ss 89 and 90 of the Marriage Act 1961.

1 of 26

FL 4 Status of Children 1 of 26

2 of 26

FL 4 Status of Children 2 of 26

Status of Children Act 5 All children are of equal status (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. 6 Construction of dispositions of property made on or after 1 July 1977 (1) This section applies to the following dispositions only: (a) dispositions made inter vivos on or after 1 July 1977 (being the date on which the Children (Equality of Status) Act 1976 commenced), (b) dispositions made by will or codicil executed before, on or after 1 July 1977 by a person who dies after that date. (2) Unless a contrary intention appears, in any disposition to which this section applies: (a) a reference (however expressed) to the child or children of a person includes a reference to an exnuptial child of whom that person is a parent, and (b) a reference (however expressed) to any person or persons related to another person (other than as a parent or child) includes a reference to anyone who is so related in fact regardless that the person related in fact, or some other person through whom the relationship is traced, is or was an exnuptial child. (3) The use of any of the following words (or of any word or words having the same or a similar meaning) does not of itself indicate a contrary intention for the purposes of subsection (2): (a) the words "legitimate" or "lawful" when used with reference to the child or children of a person or persons related to another person in some other way, (b) the words "married", "husband" or "wife" when used with reference to the parent or parents of a person. (4) Without limiting any other provision of this Act, any rule of law that a disposition in favour of an exnuptial child not conceived or born when the disposition takes effect is void as being contrary to public policy is abolished in respect of any disposition to which this section applies. 7 Construction of dispositions of property made before 1 July 1977 (1) The following dispositions are to be construed as if the Children (Equality of Status) Act 1976 and this Act had not been enacted: (a) dispositions made inter vivos before 1 July 1977, (b) dispositions made by will or codicil executed by a person who died before 1 July 1977. (2) If any such disposition contains a special power of appointment, nothing in this Act: 2 of 26

FL 4 Status of Children 2 of 26

3 of 26

FL 4 Status of Children 3 of 26 (a) extends the class of persons in whose favour the appointment may be made, or (b) causes the exercise of the power to be construed so as to include any person who is not a member of that class.

8 Rights of exnuptial children and their relatives on intestacy (1) This section applies to rights under the intestacy of persons dying on or after 1 July 1977. (2) If any relative of an exnuptial child (including a parent of the child) dies intestate in respect of all or any of the relative's real or personal property, the child (or any of the child's issue if the child is dead) is entitled to take any interest in that property that the child (or the child's issue) would have been entitled to take if the child's parents had been married to each other when the child was born. (3) If an exnuptial child dies intestate in respect of all or any of the child's real or personal property, any relative of the child (including a parent of the child) is entitled to take any interest in that property that the relative would have been entitled to take if the parents of the child had been married to each other when the child was born. (4) Nothing in this section affects the generality of section 5. However, this section does not (despite section 5) apply to any child who is an adopted person under an adoption order made or continued in force under the Adoption Act 2000 or under an adoption recognised in the State under Chapter 5 of that Act.

Part 3 - Establishing parentage Division 1 - Parentage presumptions 9 Presumptions of parentage arising from marriage (1) A child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her husband. (2) If a child is born to a woman within 44 weeks after her husband dies, the child is presumed to be the child of the woman and her deceased husband. (3) If a child is born to the woman within 44 weeks after a purported marriage to which the woman is a party is annulled, the child is presumed to be a child of the woman and her purported husband. (4) If: (a) the parties to a marriage separated at any time, and (b) after the separation, resumed cohabitation on one occasion, and (c) within 3 months after the resumption of cohabitation, they separated again and lived separately and apart, and (d) a child is born to the woman within 44 weeks after the end of the cohabitation, but after the dissolution of the marriage, the child is presumed to be the child of the woman and her former husband. (5) For the purposes of this section, a marriage is dissolved by a decree of dissolution or annulled by a decree of nullity on the making of the decree nisi. 10 Presumption of paternity arising from cohabitation A child born to a woman is presumed to be a man's child if, at any time during the 3 of 26

FL 4 Status of Children 3 of 26

4 of 26

FL 4 Status of Children 4 of 26

period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman cohabit but are not married. 11 Presumptions of parentage arising from registration of birth (1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction. (2) Nothing in this section affects the operation of Chapter 5 (Recognition of adoptions) of the Adoption Act 2000. 12 Presumption of parentage arising from findings of courts (1) A person is presumed to be a child's parent if: (a) while the person is alive, a prescribed court has: (i) found expressly that the person is the child's parent, or (ii) made a finding that it could not have made unless the person was the child's parent, and (b) the finding has not been altered, set aside or reversed. (2) A presumption arising under subsection (1) is irrebuttable. (3) A person is presumed to be a child's parent if: (a) after the person dies, a prescribed court has: (i) found expressly that the person was the child's parent, or (ii) made a finding that it could not have made unless the person was the child's parent, and (b) the finding has not been altered, set aside or reversed. (4) In this section, a reference to a finding of a prescribed court includes: (a) a reference to a declaration of parentage, and (b) a reference to a finding whether made before or after the commencement of this section. (5) Nothing in this section affects the operation of Chapter 5 (Recognition of adoptions) of the Adoption Act 2000. 13 Presumption of parentage arising from acknowledgments (1) A man is presumed to be a child's father if: (a) under this Act or other law of the State or a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction, the man executes a formal paternity acknowledgment or any other instrument acknowledging that he is the child's father, and (b) the instrument has not been annulled or otherwise set aside. (2) This section extends to instruments executed before the commencement of this section. 14 Presumptions of parentage arising out of use of fertilisation procedures (1) Married woman fertilization: When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant: (a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and 4 of 26

FL 4 Status of Children 4 of 26

5 of 26

FL 4 Status of Children 5 of 26 (b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure. (1A) Lesbian relationship: When a woman who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant: (a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and (b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure. "De facto partner" is defined in section 21C of the Interpretation Act 1987.

(2) Sperm donor is not presumed to be father: If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy. (3) Surrogate even without using the ovum: If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a). (4) Irrebutable presumption: Any presumption arising under subsections (1)(3) is irrebuttable. (5) In any proceedings in which the operation of subsection (1) is relevant, a husband's consent to the carrying out of the fertilisation procedure is presumed. (5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her de facto partner is presumed. (6) De facto relationships = marriage relationships: In this section: (a) a reference to a married woman includes a reference to a woman who is the de facto partner of a man, and (b) a reference (however expressed) to the husband or wife of a person: (i) is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and (ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married. 15 Rebuttal of parentage presumptions (1) A presumption arising under this Division, or a parentage presumption arising under any other Act or rule of law, that is rebuttable, is rebuttable by proof on the balance of probabilities. (2) Every presumption arising under this Division (except for a presumption arising under section 12 (1) or 14 (1)-(3)) is a rebuttable presumption. 16 Conflicting rebuttable parentage presumptions If two or more rebuttable presumptions referred to in section 15 conflict with each other and are not rebutted in any proceedings, the presumption that appears to the 5 of 26

FL 4 Status of Children 5 of 26

6 of 26

FL 4 Status of Children 6 of 26

court to be more or most likely to be correct prevails. 17 Conflicts involving irrebuttable parentage presumptions (1) If two or more irrebuttable presumptions arising under this Division conflict with each other, the presumption that appears to the court to be more or most likely to be correct prevails. (2) If an irrebuttable presumption arising under this Division conflicts with a rebuttable presumption arising under this Division that is not rebutted in any proceedings, the irrebuttable presumption prevails over the rebuttable presumption. 18 Parentage presumptions cannot be relied on by prosecutors Despite any other provision of this Act, a prosecutor cannot rely in any criminal proceedings on a presumption arising under this Act to prove the parentage of a child.

Division 2 - Acknowledgments of paternity 19 Execution of instrument of acknowledgment (1) A man has executed an instrument acknowledging paternity of a child under this Division if: (a) he executes an instrument in or to the effect of a form prescribed by the regulations and the instrument is countersigned by the mother of the child, and (b) he executes the instrument in the presence of a person belonging to a class of persons prescribed by the regulations for the purposes of this paragraph, and (c) the instrument has not been annulled under this Division. (2) A person in whose presence a formal paternity acknowledgment is executed in New South Wales must: (a) take possession of the acknowledgment once it is executed, and (b) cause the acknowledgment to be transmitted to the Registrar not later than 14 days after the date of its execution to be dealt with under the Births, Deaths and Marriages Registration Act 1995. Maximum penalty: 2 penalty units.

20 Annulment of paternity acknowledgments (1) A formal paternity acknowledgment can be annulled only by order of the Supreme Court. (2) The Court may annul a formal paternity acknowledgment on the application of, or on behalf of, any of the following persons: (a) the person who executed the acknowledgment, (b) the mother of the child to whom the acknowledgment relates, (c) the child to whom the acknowledgment relates, (d) the Registrar, (e) any other person who may be affected by the result of the application. (3) If the Court makes an annulment order, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the order to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995. 6 of 26

FL 4 Status of Children 6 of 26

7 of 26

FL 4 Status of Children 7 of 26

Division 3 - Declarations of parentage 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 practicable, in the same position as the person would have been in if the declaration had not been made. (4) If a declaration is annulled under this section, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the order of annulment to be transmitted to the Registrar of Births, Deaths and 7 of 26

FL 4 Status of Children 7 of 26

Buy the full version of these notes or essay plans and more in our Family Law Notes.