GUARDIANSHIP OF INFANTS ACT 1972

NORTHERN TERRITORY OF AUSTRALIA GUARDIANSHIP OF INFANTS ACT 1972 As in force at 1 May 2016 Table of provisions 1 Short title ......................................................................................... 1 2 Repeal ............................................................................................. 1 4 Recognition of father of illegitimate infant for purposes of this Act ................................................................................................... 1 5 Application to the Supreme Court for recognition as father of illegitimate infant .............................................................................. 2 6 Application to Local Court for recognition as father of illegitimate infant .............................................................................. 2 7 Right of mother to guardianship and custody of infant..................... 2 8 Equal right of mother to apply to court ............................................. 3 9 Power to make orders as to custody ............................................... 3 10 Provisions as to orders .................................................................... 3 11 Power of court as to production of infant ......................................... 4 12 Power of court to order repayment of costs of bringing up infant ................................................................................................ 4 13 Duty of court to have regard to conduct of parent before making order for delivery of infant to parent .................................... 4 14 Principles upon which questions relating to custody, upbringing, &c., of infants are to be decided.................................... 5 15 Right of surviving parent as to guardianship .................................... 5 16 Power of father or mother to appoint testamentary guardians ......... 6 17 Disputes between joint guardians .................................................... 7 18 Powers of guardian.......................................................................... 7 19 Power to remove guardian............................................................... 7 20 Payment of maintenance ................................................................. 7 21 Provision as to separation agreement ............................................. 8 The Schedule ENDNOTES -- 1 of 15 -- -- 2 of 15 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 1 May 2016 ____________________ GUARDIANSHIP OF INFANTS ACT 1972 An act to amend the law relating to the guardianship and custody of infants and for other purposes 1 Short title This Act may be cited as the Guardianship of Infants Act 1972. 2 Repeal (1) The Guardianship of Infants Act 1887 of the State of South Australia ceases to have effect in the Northern Territory as a law of the Northern Territory. (2) Section 8 of the Acts Interpretation Act 1901-1966, in its application to Ordinances by virtue of section 4 of the Interpretation Ordinance has effect as if the Guardianship of Infants Act 1887 of the State of South Australia were an Ordinance and had been repealed by this Act. 4 Recognition of father of illegitimate infant for purposes of this Act (1) Where, in relation to an infant whose parents are not married to each other at the time of its conception and have not since married each other, the name of a person is entered in the Register kept under the Births, Deaths and Marriages Registration Act 1996 as the name of the father of that infant and, in relation to that infant, an instrument that complies substantially with the form in the Schedule, duly executed and attested, is furnished to the Registrar holding office under that Act, the person whose name is entered in the Register as the name of the father of the infant is recognized as the father of the infant for the purposes of this Act. (2) An instrument that complies substantially with the form in the Schedule is duly executed and attested if: (a) a person who is a member of one of the classes of persons listed in the last paragraph of that form reads the first paragraph of that form to the mother of the infant in relation to whom the instrument is being executed and satisfies himself that she understands the meaning of the paragraph and that -- 3 of 15 -- Guardianship of Infants Act 1972 2 she is not signing the instrument under duress; (b) the mother signs the instrument in the presence of that person; and (c) that person signs the instrument. 5 Application to the Supreme Court for recognition as father of illegitimate infant (1) A person who claims paternity of an infant whose parents were not married to each other at the time of its conception and have not since married each other may make an application to the court for an order that he be recognized as the father of the infant for the purposes of this Act. (2) Upon an application under subsection (1), the court may, if it is satisfied that the applicant is the father of the infant and that he is a fit and proper person to have guardianship and custody of the infant, make the order applied for. (3) A person who makes an application under subsection (1) may, at the same time as he makes that application, make any other application under this Act that he would be entitled to make if he were the father of the infant, but the court shall not hear that other application unless it first makes an order under subsection (2). 6 Application to Local Court for recognition as father of illegitimate infant (1) A person who claims paternity of an infant whose parents were not married to each other at the time of its conception and have not since married each other may make an application to the Local Court for an order that he be recognized as the father of the infant for the purposes of this Act. (2) Upon an application under subsection (1), the Local Court may, if it is satisfied that the applicant is the father of the infant and that he is a fit and proper person to have guardianship and custody of the infant, make the order applied for. 7 Right of mother to guardianship and custody of infant (1) The mother of an infant shall have the guardianship and custody of the infant while an infant jointly with the father and each parent shall have equal authority, rights and responsibilities with regard to the infant. -- 4 of 15 -- Guardianship of Infants Act 1972 3 (2) Where an infant's parents were not married to each other at the time of its conception and have not since married each other and no person is recognized as the father under this Act, the mother of the infant shall have the guardianship and custody of the infant while an infant. 8 Equal right of mother to apply to court (1) The mother of an infant shall have the like powers to apply to the court in respect of any matter affecting the infant as are possessed by the father of an infant whose parents were married to each other at the time of its conception or have since married each other. (2) The father of an infant whose parents were not married to each other at the time of its conception and have not since married each other shall have the like powers to apply to the court in respect of any matter affecting the infant as are possessed by the father of an infant whose parents were married to each other at the time of its conception or have since married each other. 9 Power to make orders as to custody (1) The court may, upon the application of the mother or the father of any infant, make such order as it may think fit regarding the custody of the infant, and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parents, and to the wishes as well of the mother as of the father. (2) The court may alter, vary or discharge an order made under subsection (1) on the application of either parent or after the death of either parent, of any guardian appointed under this Act. (3) The court may make such order as to the costs of an application under this section as it thinks just. (4) The fact that a parent of an infant contemplates leaving the Territory shall not of itself be regarded as a reason for denying that parent the custody of the infant or depriving that parent thereof if the court is satisfied that the welfare of the infant will best be served by allowing that parent to have or retain such custody. 10 Provisions as to orders (1) The power of the court under section 9 to make an order as to the custody of an infant and the right of access thereto may be exercised notwithstanding that the mother and the father of the infant are then residing together. (2) Where the court makes an order giving the custody of the infant to one parent, then, whether or not the mother and the father are -- 5 of 15 -- Guardianship of Infants Act 1972 4 residing together, the court may further order that the other parent shall pay to the parent having the custody of the infant such weekly or other periodical sums towards the maintenance of the infant as the court, having regard to the means of both parents, may think reasonable. (3) No order providing for custody or maintenance of an infant shall be enforceable and no liability thereunder shall accrue while the mother and the father are residing together, and any such order shall cease to have effect if, for a period of 3 months after it is made, the mother and the father continue to reside together. (4) Any order made under subsection (2) may, on the application either of the father or the mother of the infant, be varied or discharged by a subsequent order. 11 Power of court as to production of infant Where the parent of an infant, or any other person at law liable to maintain the infant or entitled to his custody, applies to the court for a writ or order for the production of the infant and the court is of the opinion that the applicant has abandoned or deserted the infant or that he has otherwise so conducted himself that the court should refuse to enforce his right to the custody of the infant, the court may in its discretion decline to issue the writ or make the order. 12 Power of court to order repayment of costs of bringing up infant If, at the time of the application for a writ or order for the production of the infant, the infant is being brought up by another person, or by an institution, the court to which the application is made may in its discretion, if it orders the infant to be given up to the parent, or to any other person at law liable to maintain the infant or entitled to his custody, further order that the person to whom the infant is to be given up shall pay to the person who or the institution which has been bringing up the infant the whole of the costs, charges and expenses properly incurred in bringing up the infant or such portion thereof as seems to the court to be just and reasonable having regard to all the circumstances of the case. 13 Duty of court to have regard to conduct of parent before making order for delivery of infant to parent Where a parent of an infant, or any other person at law liable to maintain an infant or entitled to his custody, has abandoned or deserted the infant, or allowed the infant to be brought up by another person or by an institution at that or another person's or institution's expense for such length of time and in such -- 6 of 15 -- Guardianship of Infants Act 1972 5 circumstances as to satisfy the court that the parent of the infant, or the person at law liable to maintain the infant or entitled to his custody, was unmindful of his duties towards the infant, the court shall not make an order for the delivery of the infant to the person who was so unmindful of his duties unless the court is satisfied that: (a) that person is a fit person to have the custody of the infant; and (b) it is in the interests of the infant that he should be delivered to that person. 14 Principles upon which questions relating to custody, upbringing, &c., of infants are to be decided (1) Where in any proceeding before the court the custody or upbringing of an infant, or the administration of any property belonging to or held in trust for an infant, or the application of the income thereof, is in question, the court in deciding that question shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. (2) In this section upbringing includes religious instruction. 15 Right of surviving parent as to guardianship (1) On the death of the father of an infant, the mother, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the father. (2) When no guardian has been appointed by the father or if the guardian or guardians appointed by the father is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the mother. (3) On the death of the mother of an infant, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the mother. (4) When no guardian has been appointed by the mother or if the guardian or guardians appointed by the mother is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the father. -- 7 of 15 -- Guardianship of Infants Act 1972 6 16 Power of father or mother to appoint testamentary guardians (1) The father of an infant may by deed or will appoint any person to be guardian of the infant after his death. (2) The mother of an infant may by deed or will appoint any person to be guardian of the infant after her death. (3) Any guardian so appointed shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting. (4) If the surviving parent so objects, or if the guardian so appointed as aforesaid considers that the surviving parent is unfit to have the custody of the infant, the guardian may apply to the court for an order as to the custody of the infant. (5) Upon such an application the court may: (a) refuse to make any order (in which case the mother or father shall remain sole guardian); (b) make an order that the guardian so appointed shall act jointly with the surviving parent; or (c) make an order that the guardian so appointed shall be sole guardian of the infant. (6) Where an order is made under paragraph (c) of subsection (5) the court may make such order: (a) as to the right of access of the surviving parent as, having regard to the welfare of the infant, the court may think fit; and (b) as to payment by the surviving parent to the guardian towards the maintenance of the infant of such weekly or other periodical sum as, having regard to the means of the surviving parent, the court may consider reasonable. (7) The court may vary or discharge an order made under subsection (6). (8) Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly. (9) If a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent. -- 8 of 15 -- Guardianship of Infants Act 1972 7 17 Disputes between joint guardians (1) Where 2 or more persons are the joint guardians of an infant and they are unable to agree on any question affecting the welfare of the infant, any of them may apply to the court for its direction, and the court may give such directions on the application as it may think proper. (2) The power of the court under this section shall, where one of the joint guardians is the mother or father of the infant, include power: (a) to make such order relating to the custody of the infant and the right of access thereto of its mother or father as, having regard to the welfare of the infant, the court may think fit; and (b) to order the mother or father to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable; and (c) to vary or discharge any order previously made under this section. 18 Powers of guardian Every guardian appointed under this Act shall have all such powers over the estate and the person, or over the estate, as the case may be, of an infant as any guardian appointed by will or otherwise has. 19 Power to remove guardian The court may, on being satisfied that it is for the welfare of the infant: (a) remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act; and (b) appoint another guardian in place of the guardian so removed. 20 Payment of maintenance (1) Where any guardian, trustee, executor, or person acting in a fiduciary capacity is, under any will, gift or settlement, or otherwise by law, possessed of any fund for the maintenance of any infant, or any fund a portion of which may by law be applied to such maintenance and the court orders the infant to be delivered to, or to remain in the custody of one parent, the court may also order any such guardian, trustee, executor, curator or person acting in a fiduciary capacity to pay to such parent from time to time during the continuance of such custody, for the purpose of the maintenance of -- 9 of 15 -- Guardianship of Infants Act 1972 8 the infant, such portion of such fund, not exceeding the portion lawfully applicable to such maintenance as the court may deem proper. (2) If the court is satisfied that money paid in accordance with subsection (1) for the purpose of maintenance of an infant has been misapplied the court may, upon application, rescind, alter or vary any order made under subsection (1). 21 Provision as to separation agreement No agreement contained in any separation deed made between the father and mother of an infant shall be held to be invalid by reason only of its providing that either parent of the infant shall give up the custody and control thereof to the other parent, but no such agreement shall be enforced if the court is of the opinion that it will not be for the benefit of the infant to give effect thereto. -- 10 of 15 -- The Schedule Guardianship of Infants Act 1972 9 The Schedule section 4 NORTHERN TERRITORY OF AUSTRALIA GUARDIANSHIP OF INFANTS ACT 1972 GRANTING OF GUARDIANSHIP AND CUSTODY TO FATHER OF A CHILD TO WHOSE MOTHER HE IS NOT MARRIED The father of a child to whose mother he was not married at the time of its conception or whom he has not since married has no rights to guardianship or custody of the child unless the mother signs this document or the court is satisfied that he is a fit and proper person to have those rights. The mother is under no obligation to sign this document. She may obtain maintenance for the child without signing it. The effect of signing it is to give to the father guardianship and custody of the infant jointly with the mother, so that each parent has equal authority, rights and responsibilities with regard to the infant. I ...........................……………………………………………….............................. (Name of mother in block letters) of .................................………………………………………………...................... (Address of mother in block letters) acknowledge that ..................……………………………………......................... (Name of father in block letters) of .....................................................……………………………………………….. (Address of father in block letters) is the father of my child .....................……………………………………….......... (Name of child in block letters) and it is my wish that he should have guardianship and custody of the child jointly with me, so that each parent has equal authority, rights and responsibilities with regard to the child. ...............…………………................. (Signature of mother) I ......................………………………………………………..............................… (Name of witness in block letters) of .....................................................……………………………………………….. (Address of witness in block letters) -- 11 of 15 -- The Schedule Guardianship of Infants Act 1972 10 am .....................................................……………………………………………… (Indicate to which of the classes of persons listed in the next paragraph the witness belongs). I certify that I have read the first paragraph of this form to ................................................……………………………………………………... (Name of mother) and I am satisfied that she understands the meaning of that paragraph and that she did not sign this form under duress. …………..................................... (Signature of witness) NOTE: The witness must read the first paragraph of this form to the woman who signs the form and he must satisfy himself that she understands the meaning of the paragraph and that she is not signing the form under duress. The witness must be a justice of the peace, a commissioner for oaths, a Commissioner for Affidavits, a Notary Public, a Commissioner for Declarations, a member of the Police Force of the Northern Territory, the person for the time being in charge of a Post Office, the person for the time being in charge of a branch of a bank, an authorized marriage celebrant, a barrister or a solicitor. -- 12 of 15 -- ENDNOTES Guardianship of Infants Act 1972 11 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Guardianship of Infants Ordinance 1972 (Act No. 37, 1972) Assent date 31 July 1972 Commenced 31 July 1972 Guardianship of Infants Ordinance 1973 (Act No. 17, 1973) Assent date 8 May 1973 Commenced 8 May 1973 Ordinances Revision Ordinance 1973 (Act No. 87, 1973) Assent date 11 December 1973 Commenced 11 December 1973 (s 12(2)) Amending Legislation Ordinances Revision Ordinance 1974 (Act No. 34, 1974) Assent date 26 August 1974 Commenced 11 December 1973 (s 3(2)) Ordinances Revision Ordinance (No. 2) 1974 (Act No. 69, 1974) Assent date 24 October 1974 Commenced 11 December 1973 (s 3) Ordinances Revision Ordinance 1976 (Act No. 27, 1976) Assent date 28 June 1976 Commenced ss 1, 2 and 6: 28 June 1976 (s 6(2)); ss 3 and 4: 11 December 1973; s 5: 24 October 1974 Age of Majority Ordinance 1974 (Act No. 37, 1974) Assent date 23 September 1974 Commenced 1 November 1974 (Gaz No. 42, 17 October 1974, p 475) -- 13 of 15 -- ENDNOTES Guardianship of Infants Act 1972 12 Status of Children Act 1978 (Act No. 16, 1979) Assent date 26 January 1979 Commenced 21 September 1979 (Gaz G38, 21 September 1979, p 1) Statute Law Revision Act (No. 3) 1979 (Act No. 37, 1980) Assent date 24 April 1980 Commenced 24 April 1980 Married Persons (Equality of Status) Act 1989 (Act No. 76, 1989) Assent date 12 December 1989 Commenced 12 December 1989 Births, Deaths and Marriages Registration (Consequential Amendments) Act 1996 (Act No. 27, 1996) Assent date 28 June 1996 Commenced 1 January 1997 (s 2, s 2 Births, Deaths and Marriages Registration Act 1996 (Act No. 26, 1996) and Gaz G49, 4 December 1996, p 5) Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010) Assent date 18 November 2010 Commenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations Act 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011, p 4) Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Ordinances Revision Ordinance 1973 (as amended) to the following provisions: ss 2, 4, 5, 6, 9, 10, 17, 20 and Sch. 4 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1 and 4 and Sch. 5 LIST OF AMENDMENTS s 3 amd No. 17, 1973, s 3 rep No. 37, 1974, s 11 s 4 amd No. 16, 1979, s 19; No. 27, 1996, s 7 s 5 amd No. 16, 1979, s 19 s 6 amd No. 16, 1979, s 19; No. 8, 2016, s 24 ss 7 – 8 amd No. 16, 1979, s 19 s 10 amd No. 17, 1973, s 4 s 22 rep No. 76, 1989, s 7 -- 14 of 15 -- ENDNOTES Guardianship of Infants Act 1972 13 s 23 rep No. 8, 2016, s 25 sch amd No. 16, 1979, s 19; No. 37, 1980, s 18; No. 40, 2010, s 118; No. 8, 2016, s 26 -- 15 of 15 --