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1
Status of Children Amendment Bill 2001
STATUS OF CHILDREN AMENDMENT
BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
To provide a more rational set of presumptions of parentage that
currently exists and to achieve national uniformity as agreed to by the
Standing Committee of Attorneys-General (SCAG) in October 1992.
To repeal the evidentiary provisions in s. 30 of the Maintenance Act
1965.
Reasons for the objectives and how they will be achieved
Parentage presumptions need to be uniform to avoid forum shopping,
and to minimise the possibility of different courts making different findings
of parentage. In addition, the Family Court is becoming the predominant
court in this area, so it is especially desirable that the presumptions in
States and Territories match those used by the Family Court. Queensland
courts may have to consider issues of parentage in a variety of
circumstances, including:
· intestacy distributions and family maintenance applications
· maintenance applications
· applications for a declaration of parentage
Presumptions of parentage currently arise from:
· marriage
· registrations of birth
· findings of courts
· acknowledgments from the parent
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Status of Children Amendment Bill 2001
With one significant addition, the new presumptions (set out in clause
17--new part 3, division 3 of the Bill) essentially re-enact Queensland's
present legislative presumptions. That addition is a presumption arising
from de facto cohabitation. The new de facto rule presumes that a man,
who cohabited with the mother of the child between 44 and 20 weeks prior
to the birth, is the father of the child.
This Bill is based on a model bill proposed by the Parliamentary
Counsel's Committee of SCAG and which has been approved by SCAG.
All jurisdictions have enacted this legislation except for South Australia
where it is under consideration. By enacting this uniform legislation
throughout Australia, the policy objective will be achieved.
The passing of this uniform legislation by the States and Territories is the
only option available to ensure implementation of the policy objective and
uniform application of that objective throughout Australia. There is no
other reasonable alternative way of achieving this policy objective.
The evidentiary provisions in s. 30 of the Maintenance Act 1965 are
being repealed because they are archaic and discriminatory and no longer
have any practical application.
Administrative cost to Government of implementation
None.
Fundamental legislative principles
Presumptions are rules of evidence for the courts. They facilitate proof
by allowing certain facts to be inferred when other secondary facts are
established. Courts have long applied such presumptions, for example, if a
woman gives birth during or within 44 weeks of the end of her marriage,
the husband is presumed to be the father.
All the presumptions (except for presumptions based on the findings of a
court that are made while the parent is alive (clause 17, new section 18C (1)
& (2)) are not conclusive. They can be rebutted by other more direct
evidence. With the advent of blood and genetic testing, much of the
uncertainty in proving paternity has been removed. However, there remain
cases where such testing is unavailable, for example if the putative father or
child is dead or where one of the parties will not consent to the testing. In
those cases the presumptions remain important.
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Status of Children Amendment Bill 2001
A presumption arising from a court finding made when a person is alive,
that is not altered, set aside or reversed, is irrebuttable. This is because all
the parties are alive at the time the finding was either made, altered, set
aside or reversed and are able to contest the finding.
Reverse onus in criminal proceedings without adequate justification
Section 4(3)(d) of the Legislative Standards Act 1992 requires adequate
justification for a reversal of the onus of proof in criminal proceedings.
The existence of the presumptions places an onus on the person seeking to
rebut the presumptions to prove facts contrary to the presumed facts.
Under clause 17, new section 18F the burden of proof to rebut a rebuttable
presumption is on the civil balance of probability.
It is possible that an issue of parenthood may be raised in a criminal
proceedings - for example, in relation to incest and sexual offences against
children where it is alleged as a circumstance of aggravation that the
offence was committed against a child who is a lineal descendant of the
accused. The accused bears the onus of rebutting the presumption. The
reversal of onus is justified on the following basis:
· Section 636 of the Criminal Code 1899 already reverses the onus
of proof where a blood relationship is reputed to exist in relation
to incest and sexual offences against children.
· The current Status of Children Act 1978 also reverses the onus of
proof through the current presumptions. The only new
presumption is the presumption arising from cohabitation.
· In addition, s. 8(4B) of the Status of Children Act 1978 currently
establishes that for the purpose of criminal proceedings, a
declaration of paternity made by a court is evidence, and in the
absence of evidence to the contrary, conclusive evidence of the
matters contained in it. Clause 12 moves this provision into new
section 10 (5).
· A protection for the accused also exists in s. 10(3) of the Status of
Children Act 1978 which provides that a court declaration may be
re-opened if new evidence comes to light at a later time. In
addition, under new sections 18C(1)(b) and 18C(3)(b) any
presumption arising from a court finding can be altered set aside
or reversed.
· The ability to rebut the presumption rests solely with the accused
through blood or DNA testing. The court can only order testing
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Status of Children Amendment Bill 2001
with the consent of the accused and is entitled to draw an adverse
inference if the accused refuses to consent.
· The interests of justice are properly served with this reversal of
onus. If there is no presumption, the criminal cases could fail
because the accused is the only one with the evidence to establish
the blood relationship.
Sufficient regard to Aboriginal tradition and Island custom
Section 4(3)(j) of the Legislative Standards Act 1992 requires legislation
to have sufficient regard to Aboriginal tradition and Island custom.
This Bill is the result of a uniform legislative package developed by
SCAG. During the development of this uniform legislation, consideration
was not given to this issue. The issues are much broader than the ambit of
this legislation. Until there is legal recognition of customary practices in
relation to marriage and children, the need for special presumptions of
parentage cannot be assessed. However, children born of a traditional
marriage may come under the presumption arising from co-habitation in
clause 17, section 18E of the Bill.
Consultation
The Status of Children Amendment Bill 1995 was introduced on 9 June
1995, 7 September 1995 and 19 July 2000, but in all cases lapsed with the
prorogation of Parliament. The substantive provisions of both 1995 bills
were the same as the 2000 bill and this Bill, except for the changes to effect
the uniform provisions on parentage testing procedures.
The Family Law Practitioners' Association and the Family Law
Committee of the Queensland Law Society were consulted on the 1995
bills as were the Family and Administrative Law Branch of the Attorney-
General's Department (Cwth) and the Officers Committee advising the
Standing Committee of Attorneys-General.
Additional consultation has occurred with:
· Department of Health
· John Tonge Centre for Forensic Science
· Department of Families Youth and Community Care
· Department of Aboriginal and Torres Strait Islander Policy and
Development
· Registrar of Births, Deaths & Marriages
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Status of Children Amendment Bill 2001
NOTES ON PROVISIONS
The format to this statute follows the following format:
· There is a long and short title; and
· The Act is divided into parts, each part containing within it all the
matters relevant to the purpose of implementing the objectives of
the Bill.
Part 1--Preliminary
Clause 1 sets out the short title of the Act.
Clause 2 provides for the Act to commence on a date to be fixed by
proclamation. Proclamation will be delayed until uniform regulations are
prepared on parental testing procedures.
Part 2--Amendment of Status of Children Act 1978
Clause 3 provides for the amendment of the Status of Children Act 1978.
Clause 4 amends the long title of the Status of Children Act 1978.
Clause 5 replaces s.1 with a new short title and application clauses.
Clause 6 replaces part 2 heading and s. 2 and adds new definitions
related to parentage testing.
Clause 7 omits s. 3(4). It is covered by new section 1A, added by clause
5.
Clause 8 changes the headings to s. 4, renumbers s. 4(3) as s. 4A,
relocates and renumbers sections 4 and 4A to part 5, division 1, sections 22
and 23 (as inserted by this Bill) and makes other consequential
amendments.
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Status of Children Amendment Bill 2001
Clause 9 omits s. 5, the current presumption arising from marriage. It is
replaced by a new presumption. See clause 17, which inserts a new part 3,
divisions 3 and 4 and adds a new section 18A.
Clause 10 makes a minor drafting amendment to s. 7(1)(b).
Clause 11 omits s. 8. It is replaced by the new presumptions. See clause
17, which inserts a new part 3, divisions 3 and 4--
· s. 8(1) is replaced by new section 18B
· s. 8(2) is replaced by new section 18D
· s. 8(3) is covered by the extended reference to a court finding in
new section 18C
· s. 8(4) & (4A) are replaced by new section 18C
· s. 8(4B) is moved into new section 10(5) by clause 12
· ss. 8(5) to (8) are replaced by new section 18C.
Clause 12 moves the existing provisions of s. 8(4B) into new section
10(5) and makes some minor drafting changes.
Clause 13 replaces s. 11 to incorporate the concepts of parentage testing
procedures and orders and to remove provisions that will go into the
regulations and forms.
The concept of "care and control" over children or persons lacking
capacity in relation to the carrying out and consenting to parentage testing
procedures is now outdated. It is replaced with the current concepts of:
· if the person is a child under 16 years, or is a child who is 16 or 17
years old with impaired capacity--the child's parent or guardian
or person exercising parental responsibility.
· if the person is an adult with impaired capacity--a person who
may exercise powers in relation to personal matters for the adult
under a power of attorney under the Powers of Attorney Act 1998
or a guardian for the adult under the Guardianship and
Administration Act 2000.
Clause 14 inserts new division headings in part 3, divisions 1 and 2.
Clause 15 makes consequential amendments to s. 13 and relocates s. 13
to division 2 as s. 14A.
Clause 16 makes consequential amendments to s. 14 and provides for
transitional arrangements that apply to the new parentage presumptions
under divisions 3 and 4.
Clause 17 inserts new part 3, divisions 3 and 4 as follows:
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Status of Children Amendment Bill 2001
Division 3--Other parentage presumptions
New section 18A is the presumption arising from marriage. A child
born during a marriage is presumed to be a child of the married
woman and her husband. A child born to a woman within 44 weeks
of:
· her being widowed
· the annulment of her marriage
· the married couple separating, then cohabiting for up to three
months and then separating again
is presumed to be a child of the woman and the former husband. This
replaces the current presumption of marriage in s. 5 of the Act and
makes two changes:
· The time the presumption applies is extended from 10 months
(which is equivalent to 43 weeks) to 44 weeks.
· The presumption now covers the time when a married couple
separate, resume cohabitation for up to three months and then
separate again. This three month cohabitation period is
recognised in s. 50 of the Family Law Act 1975. It permits a
married couple to attempt a reconciliation for three months
without the time being considered as part of the one year period
the couple must live separate and apart prior to commencing
divorce proceedings. A child born to a woman within 44 weeks of
this cohabitation will fall under the presumption.
New section 18B is the presumption arising from birth registration.
The man and woman named as parents in the birth register of any
Australian state or prescribed overseas jurisdiction will be presumed
to be the parents of that child.
This replaces the current presumption in s. 8(1) of the Act and makes
two changes:
· The new presumption covers the named mother. Section 8(1) is
currently limited to the named father.
· The new presumption extends to birth registers in any Australian
or prescribed overseas jurisdictions. The current presumption
only applies to births registered in Queensland.
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Status of Children Amendment Bill 2001
New section 18C is the presumption arising from a finding of a court.
The new presumption is that if another court, during the lifetime of a
person, found that person to be the parent of a particular child, the
finding (if not altered, set aside or reversed), is irrebutable. The
prescribed courts will be a court of the Commonwealth or a State or a
prescribed overseas jurisdiction. A finding made after the death of the
alleged parent will raise a rebuttable presumption.
In addition, under s. 10(3) a declaration may be re-opened by the court
if new evidence comes to light at a later time.
The current presumption is found in ss. 8(4) to 8(8) and s. 10 of the
Act. Under the current law a court finding is considered conclusive
evidence regardless of whether it was made during the lifetime of a
person. In addition, court orders from other States and Territories
within Australia or New Zealand are currently recognised by ss. 8(5)
and (6) of the Act. Under s. 8(7) the Governor in Council may
declare, by order in council, that s. 8(5) applies to countries outside
Australia. There are no orders in council in existence.
New section 18D is the presumption arising from acknowledgments.
If a man executes a deed acknowledging that he is the father of a child,
there is a presumption he is the father. This document may be
required, for example, under s. 25 of the Registration of Births,
Deaths and Marriages Act 1962. If the child's parents are not married
to each other, the father's name can only appear on the birth register if
the father executes an acknowledgment that he is the father. This
provision re-enacts the current presumption in s. 8(2).
New section 18E is the presumption arising from co-habitation. This
is new. A child born to a woman who cohabited with a man (not her
husband) at any time between 44 to 20 weeks prior to the birth, is
presumed to be a child of that man. This time is intended to cover the
conception of the child, recognising that the minimum period of
sustainable life is 20 weeks from conception.
Division 4--Other provisions about presumptions
New section 18F provides that all rebuttable presumptions are
rebuttable on a balance of probability.
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Status of Children Amendment Bill 2001
New section 18G sets out the formula for resolving conflicting
presumptions under division 3. It provides that if two or more of the
presumptions conflict and are not rebutted, the presumption appearing
to the court to be the most likely to be correct prevails. However, a
presumption under new section 18C(1), arising from a court finding
made while a person is alive, will prevail.
Clause 18 omits section 19 and adds a number of miscellaneous and
transitional provisions.
New section 19 permits the chief executive to approve forms.
New section 20 clarifies that regulations may be made about parentage
testing procedures.
New section 21 provides for the numbering and renumbering of this
Act in the next reprint and adds the headings for a new part 5 on
transitional provisions.
Clause 19 inserts a transitional provision.
Part 3--Amendment of Maintenance Act 1965
Clause 20 provides for the amendment of the Maintenance Act 1965.
Clause 21 omits part 2, division 3, subdivision 2. This repeals s. 30 of
the Maintenance Act 1965. Clause 17, new section 18C re-enacts the
parentage presumptions arising from a court finding, which includes an
order under ss. 14 and 16 of the Maintenance Act 1965. These are
maintenance orders against unmarried fathers where the court is satisfied
that the defendant is the father of the child. In making these orders, the
court is entitled to rely upon the evidentiary provisions in s. 30 of the
Maintenance Act 1965. Section 30 provides that a maintenance order shall
not be made:
(i) "upon the evidence of the mother (or, as the case may be, woman)
unless her evidence is corroborated in some material particular;
or
(ii) if the court is satisfied that, at about the time the child was
conceived, the mother (or, as the case may be, woman) was a
common prostitute or had intercourse with men other than the
defendant."
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Status of Children Amendment Bill 2001
Section 30 is to be repealed because it is archaic and discriminatory and
no longer has any practical application. Since the referral of power to the
Commonwealth in June 1990, all applications for maintenance of ex-
nuptial children are brought under the Commonwealth Family Law Act
1975 and Child Support (Assessment) Act 1989. No similar provisions
exists in either the Evidence Act 1977 or in the Family Law Act 1975.
SCHEDULE
Minor and Consequential Amendments
The schedule makes a number of minor and consequential amendments
to various sections.
© State of Queensland 2001