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This Act may be cited as the Status of Children Act 1974.
This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
S. 2 amended by No. 76/2008 s. 137 (ILA s. 39B(1)).
For the purposes of this Act marriage includes a void marriage and married has a corresponding interpretation.
S. 2(2) inserted by No. 76/2008 s. 137.
In this Act—
embryo has the meaning given by the Assisted Reproductive Treatment Act 2008;
non-birth mother means a woman who is a parent of a child by operation of a presumption in Part III;
ovum in the process of fertilisation means an ovum at any stage of human development from the commencement of penetration of the ovum by human sperm up to but not including the appearance of 2 pro-nuclei;
partner, in relation to a person, means—
the person's spouse; or
a person who lives with the first person as a couple on a genuine domestic basis;
spouse means a person to whom another person is married.
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.
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.
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).
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.
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.
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.
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.
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.
S. 6(1) amended by No. 80/2014 s. 44.
For the purposes of the administration or distribution of any estate or of any property held upon trust, or of any application for a family provision order 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.
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.
S. 7(1) amended by No. 80/2014 s. 45.
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 for a family provision order under Part IV of the Administration and Probate Act 1958, be recognized only if—
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
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.
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.
S. 8 (Heading) inserted by No. 76/2008 s. 138(1).
S. 8(1) amended by Nos 10244 s. 10, 43/1996 s. 65(Sch. item 11.1), 76/2008 s. 138(2).
Where the name of a parent 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 a parent is a parent of the child.
S. 8(2) amended by No. 35/1996 s. 453(Sch. 1 item 79).
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.
S. 8(2A) inserted by No. 76/2008 s. 138(3).
An instrument signed by the mother of a child and any person certifying that she is the non-birth mother of the child is, if executed as a deed or by each of those persons in the presence of a legal practitioner, prima facie evidence that the person named as the non-birth mother is a parent of the child.
S. 8(3) repealed by No. 59/1997 s. 9(a).
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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.
S. 8(5) amended by No. 76/2008 s. 138(2).
An order made outside Victoria declaring a person to be a parent of a child, being an order described in subsection (6) or subsection (7), shall be prima facie evidence that the person declared a parent is a parent of the child.
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.
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.
S. 9 (Heading) inserted by No. 76/2008 s. 139(1).
S. 9(1) amended by Nos 10244 s. 10, 43/1996 s. 65(Sch. item 11.2), 76/2008 s. 139(2).
Any instrument of the kind described in subsection (2) or (2A) 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.
S. 9(2) amended by Nos 10244 s. 10, 43/1996 s. 65(Sch. item 11.2).
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.
S. 9(3) amended by Nos 10244 s. 10, 57/1989 s. 3(Sch. item 188), 43/1996 s. 65(Sch. item 11.2), 59/1997 s. 9(b), 76/2008 s. 139(3).
Where the Supreme Court makes a declaration of parentage 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) or (2A) of section 8.
S. 10 (Heading) inserted by No. 76/2008 s. 140(1).
S. 10(1) substituted by No. 76/2008 s. 140(2).
Any person (the first person) who—
claims that any named person is a parent of the first person's child; or
claims that a relationship of parent and child exists between the first person and any other named person; or
has a proper interest in the result who wishes to have a determination whether the relationship of parent and child exists between two named persons—
may apply to the Supreme Court for a declaration of parentage and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of parentage whether or not the parent or the child or both of them are living or dead.
S. 10(2) amended by No. 76/2008 s. 140(3).
Where a declaration is made under subsection (1) after the death of the parent 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.
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.
Pt 2 (Heading and ss 10A–10F) inserted by No. 10069 s. 5.
Pt 2 (Heading) substituted by No. 76/2008 s. 141.
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.
A reference, however expressed, in this Part to the husband or wife of a person—
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
does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.
S. 10A(3) inserted by No. s 63/1995 s. 170(1), amended by No. 11/2003 s. 25(2)(3), repealed by No. 76/2008 s. 142.
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S. 10B inserted by No. 10069 s. 5.
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