STATUS OF CHILDREN ACT 1974 No. 8602 of 1974 Version incorporating amendments as at 8 February 2008 Status of Children Act 1974 - TABLE OF PROVISIONS Section Page PART I-PRELIMINARY 1. Short title and commencement 2. Definitions 3. All children to be of equal status 4. Instruments executed before commencement 5. Presumptions as to parenthood 6. Protection of executors, administrators and trustees 7. Recognition of paternity 8. Evidence of paternity 9. Instruments may be filed with Government Statist 10. Application to Supreme Court for declaration of paternity PART II-STATUS OF CHILDREN-MEDICAL PROCEDURES 10A. Interpretation 10B. Application of Part 10C. Artificial insemination: presumption as to status of child 10D. Implantation procedures: presumption as to status of child where donor semen used 10E. Implantation procedures: presumption as to status of child where donor ovum used 10F. Donor of semen used in artificial insemination of certain women PART III-GENERAL 11. Regulations 12. Repealed __________________ SCHEDULE-Repealed --------------- ENDNOTES 1. General Information 2. Table of Amendments 3. Explanatory Details Status of Children Act 1974 - PART I PART I PRELIMINARY Status of Children Act 1974 - SECT 1 Short title and commencement 1. Short title and commencement (1) This Act may be cited as the Status of Children Act 1974. (2) This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette. Status of Children Act 1974 - SECT 2 Definitions 2. Definitions For the purposes of this Act marriage includes a void marriage and married has a corresponding interpretation. Status of Children Act 1974 - SECT 3 All children to be of equal status 3. All children to be of equal status (1) For all the purposes of the law of Victoria the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly. (2) The rule of construction whereby in any instrument, in the absence of expression of any intention to the contrary, words of relationship signify only legitimate relationship is abolished. (3) For the purpose of construing any instrument the use, with reference to relationship of a person, of the words "legitimate" or "lawful" shall not of itself prevent the relationship from being determined in accordance with the provisions of subsection (1). (4) This section shall apply in respect of every person, whether born before or after the commencement of this Act, whether born in Victoria or not, and whether or not his father or mother has ever been domiciled in Victoria. Status of Children Act 1974 - SECT 4 Instruments executed before commencement 4. Instruments executed before commencement (1) All instruments executed before the commencement of this Act shall be governed by the enactments, rules of construction, and law which would have applied to them if this Act had not been passed. (2) Where an instrument to which subsection (1) applies creates a special power of appointment nothing in this Act shall extend the class of persons in whose favour the appointment may be made or cause the exercise of the power to be construed so as to include any person who is not a member of that class. (3) The estate of a person who dies intestate as to the whole or any part of his estate before the commencement of this Act shall be distributed in accordance with the enactments and rules of law which would have applied to the estate if this Act had not been passed. Status of Children Act 1974 - SECT 5 Presumptions as to parenthood 5. Presumptions as to parenthood A child born to a woman during her marriage or within ten months after the marriage has been dissolved by death or otherwise shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be. Status of Children Act 1974 - SECT 6 Protection of executors, administrators and trustees 6. Protection of executors, administrators and trustees (1) For the purposes of the administration or distribution of any estate or of any property held upon trust, or of any application under Part IV of the Administration and Probate Act 1958, or for any other purposes an executor, administrator, or trustee is not under any obligation to inquire as to the existence of any person who could claim an interest in the estate or the property by reason only of the provisions of this Act. (2) No action shall lie against an executor of the will or administrator or trustee under an instrument by any person who could claim an interest in the estate or property by reason only of any of the provisions of this Act to enforce any claim arising by reason of the executor or administrator or trustee having made any distribution of the estate or of the property held upon trust or otherwise acted in the administration of the estate or property held on trust disregarding the claims of that person where at the time of making the distribution or otherwise so acting the executor administrator or trustee had no notice of the relationship on which the claim is based. Status of Children Act 1974 - SECT 7 Recognition of paternity 7. Recognition of paternity (1) The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of a claim under Part IV of the Administration and Probate Act 1958, be recognized only if- (a) the father and the mother of the child were married to each other at the time of its conception or at some subsequent time; or (b) paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if the father is a beneficiary of the child, paternity has been so admitted or established while the child was living. (2) In any case where by reason of the provisions of subsection (1) the relationship of father and child is not recognized at the time the child is born the occurrence of any act, event, or conduct which enables that relationship and any other relationship traced in any degree through it to be recognized shall not affect any estate right or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event, or conduct occurred. Status of Children Act 1974 - SECT 8 Evidence of paternity 8. Evidence of paternity (1) Where the name of the father of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as the father is the father of the child. (2) An instrument signed by the mother of a child and by any person acknowledging that he is the father of the child shall, if executed as a deed or by each of those persons in the presence of a legal practitioner, be prima facie evidence that the person named as the father is the father of the child. * * * * * (4) Subject to subsection (1) of section 7 a declaration made under section 10 shall for all purposes be conclusive proof of the matters to which it relates. (5) An order made outside Victoria declaring a person to be the father of a child, being an order described in subsection (6) or subsection (7), shall be prima facie evidence that the person declared the father is the father of the child. (6) For the purposes of this section an order made outside Victoria in another Australian State or in a Territory of the Commonwealth or in New Zealand has, so long as it has not been rescinded under the law in force in that State or Territory, the same effect as the like order made in Victoria. (7) The Governor in Council may from time to time, by Order, declare that subsection (5) applies with respect to orders made by any court or public authority in any specified country outside Australia or by any specified court or public authority in any such country. Status of Children Act 1974 - SECT 9 Instruments may be filed with Government Statist 9. Instruments may be filed with Government Statist (1) Any instrument of the kind described in subsection (2) of section 8 or a copy thereof may be filed in the office of the Registrar of Births, Deaths and Marriages upon payment of the prescribed fee. (2) The Registrar of Births, Deaths and Marriages shall cause indexes of all instruments and copies filed with him under subsection (1) to be made and kept in his office and shall, upon request made by or on behalf of a party to an instrument so filed or a child referred to in any such instrument or a guardian or relative of that child cause a search of any index to be made and shall permit that person to inspect any such instrument or copy if he is satisfied that the person has a direct and proper interest in the matter. (3) Where the Supreme Court makes a declaration of paternity under section 10 the proper officer of the court shall forward a copy of the declaration or order to the Registrar of Births, Deaths and Marriages for filing in his office under this section and on receipt of any such copy the Registrar of Births, Deaths and Marriages shall file it accordingly as if it were an instrument of the kind referred to in subsection (2) of section 8. Status of Children Act 1974 - SECT 10 Application to Supreme Court for declaration of paternity 10. Application to Supreme Court for declaration of paternity (1) Any person who- (a) being a woman-alleges that any named person is the father of her child; (b) alleges that the relationship of father and child exists between himself and any other named person; or (c) being a person having a proper interest in the result-wishes to have a determination whether the relationship of father and child exists between two named persons- may apply to the Supreme Court for a declaration of paternity and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of paternity whether or not the father or the child or both of them are living or dead. (2) Where a declaration is made under subsection (1) after the death of the father or of the child the Court may at the same or any subsequent time make a declaration determining, for the purposes of paragraph (b) in subsection (1) of section 7, whether any of the requirements of that paragraph have been satisfied. (3) Where a declaration has been made under subsection (1) and it appears to the Court that new facts or circumstances have arisen that have not previously been disclosed to a Court and could not by the exercise of reasonable diligence have previously been known the Court may revoke the declaration which shall thereupon cease to have any force or effect. _______________ Status of Children Act 1974 - PART II PART II STATUS OF CHILDREN-MEDICAL PROCEDURES Status of Children Act 1974 - SECT 10A Interpretation 10A. Interpretation (1) A reference in this Part to a married woman includes a reference to a woman who is living with a man as his wife on a bona fide domestic basis although not married to him. (2) A reference, however expressed, in this Part to the husband or wife of a person- (a) is, in the case where the person is living with another person of the opposite sex as his or her spouse on a bona fide domestic basis although not married to the other person, a reference to that other person; and (b) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married. (3) In this Part- embryo includes an embryo within the meaning of the Infertility Treatment Act 1995, as in force immediately before the commencement of section 5(2)(a) of the Health Legislation (Research Involving Human Embryos and Prohibition of Human Cloning) Act 2003; ovum in the process of fertilisation means an ovum at any stage of human development from the commencement of penetration of an ovum by sperm up to but not including syngamy; semen includes sperm; syngamy has the same meaning as in the Infertility Treatment Act 1995, as in force immediately before the commencement of section 5(2)(a) of the Health Legislation (Research Involving Human Embryos and Prohibition of Human Cloning) Act 2003. Note The Infertility Treatment Act 1995 defined embryo and syngamy as follows- embryo means any stage of human embryonic development at and from syngamy; syngamy means that stage of development of a fertilised oocyte where the chromosomes derived from the male and female pronuclei align on the mitotic spindle. Status of Children Act 1974 - SECT 10B Application of Part 10B. Application of Part (1) Subject to subsection (3), the provisions of this Part apply- (a) in respect of a pregnancy referred to in section 10C, 10D or 10E, whether the pregnancy occurred before or after the commencement of the Status of Children (Amendment) Act 1984 and whether or not it resulted from a procedure carried out in Victoria; and (b) in respect of any child born as a result of a pregnancy referred to in section 10C, 10D or 10E, whether or not the child was born before or after the commencement of the Status of Children (Amendment) Act 1984. (2) Nothing in any provision of this Part affects the vesting in possession or in interest of any property that occurred before the commencement of the Status of Children (Amendment) Act 1984. (3) The amendments made to this Part by the Infertility Treatment Act 1995 apply- (a) in respect of a pregnancy referred to in section 10D or 10E which resulted from a procedure carried out in or outside Victoria whether before or after the commencement of section 170 of the Infertility Treatment Act 1995; and (b) in respect of any child born as a result of a pregnancy referred to in section 10D or 10E resulting from a procedure carried out whether before or after the commencement of section 170 of the Infertility Treatment Act 1995. (4) Nothing in the amendments made to this Part by the Infertility Treatment Act 1995 affects the vesting in possession or in interest of any property that occurred before the date on which that Act received the Royal Assent. Status of Children Act 1974 - SECT 10C Artificial insemination: presumption as to status of child 10C. Artificial insemination: presumption as to status of child (1) A reference in this section to a procedure is a reference to the artificial insemination of a woman where the semen used for the artificial insemination- (a) was produced by a man other than her husband; or (b) was a mixture of semen, part of which was produced by a man other than her husband and part of which was produced by her husband. (2) Where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant- (a) the husband shall be presumed, for all purposes, to have caused the pregnancy and to be the father of any child born as a result of the pregnancy; and (b) any man, not being her husband, who produced semen used for the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. (3) A presumption of law that arises by virtue of subsection (2)- (a) is irrebuttable; and (b) prevails over any conflicting presumption that arises by virtue of section 8 or 10. (4) In any proceedings in which the operation of subsection (2) is relevant, a husband's consent to the carrying out of a procedure in respect of his wife shall be presumed, but that presumption is rebuttable. Status of Children Act 1974 - SECT 10D Implantation procedures: presumption as to status of child where donor semen used 10D. Implantation procedures: presumption as to status of child where donor semen used (1) A reference in this section to a procedure is a reference to the procedure of implanting in the womb of a woman, or otherwise transferring to the body of a woman, an embryo derived from an ovum produced by her and fertilized outside her body by semen produced by a man other than her husband. (1A) A reference in this section to a procedure includes a reference to- (a) the procedure of transferring to the body of a woman, otherwise than by artificial insemination- (i) semen produced by a man other than her husband; or (ii) semen produced by a man other than her husband and an ovum produced by her; and (b) the procedure of transferring to the body of a woman an ovum in the process of fertilisation, if the ovum was produced by her and the process of fertilisation commenced outside her body from semen produced by a man other than her husband. (2) Where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant- (a) the husband shall be presumed, for all purposes, to have produced the semen used for the fertilization of the ovum used in the procedure and to be the father of any child born as a result of the pregnancy; and (b) the man who produced the semen used for the fertilization of the ovum used in the procedure shall, for all purposes, be presumed not to have produced that semen and not to be the father of any child born as the result of the pregnancy; and (c) the husband shall be presumed, for all purposes, to have produced the semen- (i) used in the procedure; or (ii) used for the fertilisation of the ovum used in the procedure; or (iii) used for the fertilisation of the ovum from which the embryo used in the procedure was derived- and to be the father of any child born as a result of the pregnancy; and (d) the man who produced the semen- (i) used in the procedure; or (ii) used for the fertilisation of the ovum used in the procedure; or (iii) used for the fertilisation of the ovum from which the embryo used in the procedure was derived- shall, for all purposes, be presumed not to have produced that semen and not to be the father of any child born as the result of the pregnancy. (3) A presumption of law that arises by virtue of subsection (2)- (a) is irrebuttable; and (b) prevails over any conflicting presumption that arises by virtue of section 8 or 10. (4) In any proceedings in which the operation of subsection (2) is relevant, a husband's consent to the carrying out of a procedure in respect of his wife shall be presumed but that presumption is rebuttable. Status of Children Act 1974 - SECT 10E Implantation procedures: presumption as to status of child where donor ovum used 10E. Implantation procedures: presumption as to status of child where donor ovum used (1) A reference in this section to a procedure is a reference to the procedure of implanting in the womb of a woman, or otherwise transferring to the body of a woman, an embryo derived from an ovum produced by another woman, being an ovum that has been fertilized by- (a) semen produced by the husband of the first-mentioned woman; or (b) semen produced by a man other than the husband of the first-mentioned woman. (1A) A reference in this section to a procedure includes a reference to- (a) the procedure of transferring to the body of a woman an ovum produced by another woman, including an ovum in the process of fertilisation, where that process commenced outside the body of the first-mentioned woman; and (b) the procedure of transferring to the body of a woman an ovum produced by another woman and semen- whether any semen transferred, or any semen which is used to fertilise the ovum (if any) is produced by the husband of the first-mentioned woman or by another man. (2) Where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant- (a) the married woman shall be presumed, for all purposes, to have become pregnant as a result of the fertilization of an ovum produced by her and to be the mother of any child born as the result of the pregnancy; (b) the woman who produced the ovum used in the procedure or from which the embryo used in the procedure was derived shall be presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy; (c) where the semen used for the fertilization of the ovum from which the embryo used in the procedure was derived was produced by the husband of the married woman, the husband shall be presumed, for all purposes, to be the father of any child born as the result of the pregnancy; and (d) where the semen used for the fertilization of the ovum from which the embryo used in the procedure was derived was produced by a man other than the husband of the married woman- (i) the husband shall be presumed, for all purposes, to have produced the semen and to be the father of any child born as the result of the pregnancy; and (ii) the man who produced the semen shall be presumed, for all purposes, not to have produced that semen and not to be the father of any child born as a result of the pregnancy. (e) where the semen used- (i) in the procedure; or (ii) for the fertilisation of the ovum used in the procedure- was produced by the husband of the married woman, the husband shall be presumed, for all purposes, to be the father of any child born as a result of the pregnancy; and (f) where the semen used- (i) in the procedure; or (ii) for the fertilisation of the ovum used in the procedure- was produced by a man other than the husband of the married woman- (iii) the husband shall be presumed, for all purposes, to have produced the semen and to be the father of any child born as a result of the pregnancy; and (iv) the man who produced the semen shall be presumed, for all purposes, not to have produced that semen and not to be the father of any child born as a result of the pregnancy. (3) A presumption of law that arises by virtue of subsection (2)- (a) is irrebuttable; and (b) prevails over any conflicting presumption that arises by virtue of section 8 or 10. (4) In any proceedings in which the operation of subsection (2) is relevant, a husband's consent to the carrying out of a procedure in respect of his wife shall be presumed but that presumption is rebuttable. Status of Children Act 1974 - SECT 10F Donor of semen used in artificial insemination of certain women 10F. Donor of semen used in artificial insemination of certain women (1) Where semen is used in a procedure of artificial insemination of a woman who is not a married woman or of a married woman otherwise than in accordance with the consent of her husband, the man who produced the semen has no rights and incurs no liabilities in respect of a child born as a result of a pregnancy occurring by reason of the use of that semen unless, at any time, he becomes the husband of the mother of the child. (2) For the purposes of subsection (1), the rights and liabilities of a man who becomes the husband of the mother of a child so born are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, do not include liabilities incurred before the man becomes the husband of the mother. _______________ Status of Children Act 1974 - PART III PART III GENERAL Status of Children Act 1974 - SECT 11 Regulations 11. Regulations The Governor in Council may make regulations for or with respect to- (a) forms for the purposes of this Act; (b) fees to be charged under this Act; (c) generally, any matter or thing which is authorized or required to be prescribed for carrying this Act into effect. * * * * * __________________ * * * * * --------------- ENDNOTES 1. General Information The Status of Children Act 1974 was assented to on 26 November 1974 and came into operation 1 March 1975: Government Gazette 5 February 1975 page 228. 2. Table of Amendments This Version incorporates amendments made to the Status of Children Act 1974 by Acts and subordinate instruments. ------------------------------------------------------------- Statute Law Revision (Repeals) Act 1982, No. 9863/1982 Assent Date: 5.1.83 Commencement Date: 5.1.83 Current State: All of Act in operation Status of Children (Amendment) Act 1984, No. 10069/1984 Assent Date: 15.5.84 Commencement Date: 1.8.84: Government Gazette 1.8.84 p. 2713 Current State: All of Act in operation Registration of Births Deaths and Marriages (Amendment) Act 1985, No. 10244/1985 Assent Date: 10.12.85 Commencement Date: 31.10.86: Government Gazette 29.10.86 p. 4114 Current State: All of Act in operation Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989 Assent Date: 14.6.89 Commencement Date: S. 3(Sch. item 188) on 1.9.90: Government Gazette 25.7.90 p. 2217 Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Infertility Treatment Act 1995, No. 63/1995 Assent Date: 27.6.95 Commencement Date: S. 170 on 1.7.88: s. 2(2) Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Legal Practice Act 1996, No. 35/1996 Assent Date: 6.11.96 Commencement Date: S. 453(Sch. 1 item 79) on 1.1.97: s. 2(3) Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Births, Deaths and Marriages Registration Act 1996, No. 43/1996 Assent Date: 26.11.96 Commencement Date: S. 65(Sch. items 11.1, 11.2) on 1.11.98: s. 2(3) Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Commonwealth Powers (Family Law-Children) (Amendment) Act 1997, No. 59/1997 Assent Date: 5.11.97 Commencement Date: S. 9 on 1.11.98: s. 2(3) Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Statute Law Revision Act 2000, No. 74/2000 Assent Date: 21.11.00 Commencement Date: S. 3(Sch. 1 item 118) on 22.11.00: s. 2(1) Current State: This information relates only to the provision/s amending the Status of Children Act 1974 Health Legislation (Research Involving Human Embryos and Prohibition of Human Cloning) Act 2003, No. 11/2003 Assent Date: 6.5.03 Commencement Date: S. 25(2)(3) on 16.10.03: Government Gazette 16.10.03 p. 2624 Current State: This information relates only to the provision/s amending the Status of Children Act 1974 ------------------------------------------------------------- 3. Explanatory Details No entries at date of publication ?? ?? Status of Children Act 1974 No. 8602 of 1974