#8555 - Status Of Children - Family Law

FL 4 Status of Children 1

Status of Children Act 3

5 All children are of equal status 3

6 Construction of dispositions of property made on or after 1 July 1977 3

7 Construction of dispositions of property made before 1 July 1977 3

8 Rights of exnuptial children and their relatives on intestacy 4

Part 3 – Establishing parentage 4

Division 1 – Parentage presumptions 4

9 Presumptions of parentage arising from marriage 4

10 Presumption of paternity arising from cohabitation 4

11 Presumptions of parentage arising from registration of birth 5

12 Presumption of parentage arising from findings of courts 5

13 Presumption of parentage arising from acknowledgments 5

14 Presumptions of parentage arising out of use of fertilisation procedures 5

15 Rebuttal of parentage presumptions 6

16 Conflicting rebuttable parentage presumptions 6

17 Conflicts involving irrebuttable parentage presumptions 7

18 Parentage presumptions cannot be relied on by prosecutors 7

Division 2 – Acknowledgments of paternity 7

19 Execution of instrument of acknowledgment 7

20 Annulment of paternity acknowledgments 7

Division 3 – Declarations of parentage 8

21 Applications for declarations in the Supreme Court 8

22 Annulment of declaration of parentage 8

Division 4 – Evidence of court findings and paternity acknowledgments 9

23 Admissibility of court findings and paternity acknowledgments 9

Division 5 – Hearings under Divisions 2 and 3 9

24 Conduct of hearings 9

25 Offence: publication of identity of participants in hearing 9

Division 6 – Parentage evidence 9

26 Orders for carrying out of parentage testing procedures 9

27 Orders associated with parentage testing orders 10

28 Orders made against children under 18 years of age 10

If there’s been a surrogacy arrangement: Surrogacy Act 2010 12

5 Surrogacy arrangement--meaning 13

Part 2 – Surrogacy arrangements 13

Division 1 – Enforcement of surrogacy arrangements 14

6 Enforcement 14

7 Birth mother's surrogacy costs--meaning 14

8 Commercial surrogacy arrangements prohibited 15

9 Commercial surrogacy arrangement--meaning 15

10 Advertising of surrogacy arrangements prohibited 15

11 Geographical nexus for offences 16

Part 3 – Parentage orders 16

12 Parentage order 16

13 References to "child" 16

14 Application for parentage order 16

15 Date of surrogacy arrangement 17

16 Time within which application must be made 17

17 Independent counsellor's report 17

18 Making of parentage order by Court 18

19 Ancillary orders 18

20 Birth siblings must be kept together 18

21 Preconditions to making of parentage order 18

22 Best interests of child are paramount 19

23 Surrogacy arrangement must be altruistic 19

24 Surrogacy arrangement must be a pre-conception surrogacy arrangement 19

25 Intended parent must be single person or member of a couple 19

26 Age (must be under 18) and wishes of child must be considered 19

27 Age of birth mother (at least 25 yrs old when entering) 19

28 Age of intended parents (at least 18 yo entering) 20

29 Maturity of younger (than 25) intended parent must be demonstrated 20

30 Medical or social need for surrogacy arrangement must be demonstrated 20

31 Affected parties must consent to order 21

32 Applicant or applicants must be resident in NSW 21

33 Child must be living with applicant or applicants 21

34 Surrogacy arrangement must be in writing 21

35 Counselling must have been obtained (before entering) 21

36 Legal advice must have been obtained (before entering SA) 22

37 Information must be provided for inclusion in central register 22

38 Birth of child must be registered 22

39 General effect of order 22

40 Effect on property 23

41 Liability of trustees and legal personal representatives in relation to children 23

42 Name of child 23

43 Application for discharge of parentage order 24

44 Power of Court to discharge parentage order 24

45 Effect of discharge of parentage order 24

46 Ancillary orders 24

47 Proceedings to be heard in closed court 25

48 Right of appeal 25

49 Registrar of Births, Deaths and Marriages to be notified of order 25

50 Notice to be given to other States 25

51 Director-General of Department of Health to be notified of order 25

52 Prohibition on disclosure of information relating to surrogacy arrangements – 25pu of 12monthsimprisonment 26

53 Restricted access to court records 26

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) 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.

(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.

(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:

(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.

(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.

(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...