Guardianship and Custody of Infants and Marriage of Minors Amendment Act of 1928 (19 Geo v No. 4) (Qld)

12132 CHILDREN. Guardianship of Infants, Etc., Act. 19 GEO. V. No. 4, CHILDREN. Guardianship and Custody of Infants and Marriage of Minors Amendment Act of 1928 19 Geo. V. No. 4 State Children Acts Amendment Act of 1928 19 Geo. V. No. 19 19N G o f . lo 4 . . V. An Act to Amend the Law with respect to the THE Guardianship, Custody, and Marriage of GUARDIAN- SHIP AND Infants. CUSTODY OF INFANTS AND MARRIAGE [ASSENTED TO 4TH OCTOBER, 1928.] OF MINORS ! ~ I: ~ ~ ~ : : 8~ BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I.-·PRELIMINARY. Short title 1. This Act may be cited as " The Guardianship and a cmo n em d nmt. ence· AOcutstoodfy 19 o 2 f 8 I . n " fants and Marriage of Minors - Amendment This Act shall take effect on a date to' be proclaimed by the Gover:fior in Council by Proclamation published in the Gazette, which. date is hereinafter referred to as the commencement of this Act. Parts of Act. 2. This Act shall be divided into three parts, as follows :- PART I.-PRELIMINARY; PART H.-GUARDIANSHIP AND CUSTODY OF INFANTS AMENDMENT; PART HL-MARRIAGE ACT AMENDMENT. PART H.-GUARDIANSHIP AND CUSTODY OF INFANTS AMENDMENT. Construction 3. This Part of this Act shall be read as one with of Part n. *" The Guardianship and Oustody of Infants Act of 1891," herein referred to in this Part as the Principal Act. The Principal Act and this Part may collectively be· cited as " The Guardianship and Oustody of Infants Acts, 1891 to 1928." * 55 Vic. No. 13, supra, page 161.

CHILDREN. 12133 1928. Gitardianship of Infants, Etc., Act. ----- - - - ~ - - - - 4. Sections three and four of the Principal Act are AmendI?ent repealed, and the following new sections are inserted ~ 0~ 51ilC. in lieu thereof:- "[3.] Where in any proceeding before the Court or Pri;Iciple on any other court of competent jurisdiction the custody ; ~ ~ ~ ~ ions or upbringing of an infant, or the administration of any relating to property belonging to or held on trust for an infant, or ~ ~ ~ ~ ~ ~ ng, the application of the income thereof, is in question, the ~ c. , of Court in deciding that question shall regard the welfare:f~ ~ts are of the infant as the first and paramount consideration, decided. 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. [3A.] The mother of an infant shall have the like Equal right powers to apply to the Court in respect of any matter ~~ p~; ~ ~er to affecting the infant as are possessed by the, father. Court. [4.] (1.) On the death of the father of an infant, theRig~ts.of mother, if surviving, shall, subject to the provisions of: a~ : ~ ~ l~ ~ to this Act, be guardian of _the infant, either alone or gu:",rdian. jointly with any guardian appointed by the father. ShIp. 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. (2.) 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. 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 C1r refuse to act, the Court may if it thinks fit appoint a guardian to act jointly with the father. [4A.] (1.) The father of an infant may by deed or Power of awfitlel rahpIp.Soidnetatahn. y perso-n to be guardian of the infant fmaaptohphtoeirenratntod testamentary (2.) The mother of an infant may by deed or will guardians. appoint any person to be guardian of the infant after her death.

12134 CHILDREN. G1lardian,ship of Infants, Etc., Act. 19 GEO. V. No. 4~ (3.) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remains alive unless the mother or father objects to his so acting. (4.) If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the infant, the guardian may apply to the Court, and the Court may either refuse to make any order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the infant, and in the latter case may make such order regarding 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 may further order that the mother or father shall pay to the guardian towards the main- tenance 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. (5.) Where guardians are appointed by both parents,. the guardians so appointed shall after the death of the surviving parent act jointly. (6.) If under the preceding section 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 p~ rent. " Disputes between joint guardians. 5. Where two or more persons act as 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 make such order regarding t4e matters in difference as it may think proper. 6. The following additional subsection is added to section six of the Principal Act, and section six is renumbered subsection one of section six accordingly ;- Further . "(2.) The power of the Court under the provisions = ~n! x: ; !~ of t~ is section to make an order as to the custody of to the an mfant and the right of access thereto may be :nc ' : nU: ~~ d exercised notwithstanding that the mother of the infant of infa: : ts~ a is then residing with the father of the infant..-

1928. CHILDREN. Guardianship of Infants, Etc., Act. 12135 Where the Court under this section makes an order giving the custody of the infant to the mother, then, whether or not the mother is then residing with the father, the Court may further order that the father shall pay to the mother towards the maintenance of the infant such weekly or other periodical sum as the Court, having regard to the means of the father, may think reasonable. No such order, whether for custody or maintenance, shaH be enforceable and no liability thereunder shall accrue while the mother resides with the father, and any such order shall cease to have effect if, for a period of three months after it is made, the mother of the infant continues to reside with the father. Any order so made may, on the application either of the father or the mother of the infant, be varied or discharged by a subsequent order." 7. Section fourteen is repealed and the following section is inserted in lieu thereof :- "[14.] The power and authority to make Rules, Power to <lonferred on the Governor in Council with the con- make Rules. <lurrence of any two or more of the Judges of the Supreme Court by section eleven of * " The Supreme Oourt Act of 1921," shaH extend and apply to this Act, and the said * "The Supreme Oourt Act of 1921 " and any amend- ment thereof having reference to Rules of Court shall extend and apply herein accordingly." PART lII.-MARRIAGE ACT AMENDMENT. 8.This Part of this Act shall be read as one with Construction' t" The Marriage Act of 1864," herein referred to as the of Part Ill. Principal Act. The Principal Act and t" The Marriage Law Amendment Act of 1870" and §" The Justices Marrying Act of 1872" and 11" The Deceased Wife's Sister Marriage Act of 1877," and this Part of this Act, may together be cited as "The Marriage Acts, 1864 to 1928." * 12 Gao. V. No'. 15, supra, page 9787. t 28 Vie. No. 15, supra, page 2041. :I: 34 Vie. No. 8, supra, page 2047. § 36 Vie.No. 12, supra, page 2048. 1141 Vie., No. 25, supra, page 2049.

12136 CHILDREN. Guardianship of Infants, Etc., Act. 19 GEO. V. No. 4, Consents required to 9. (l.) If either party to an intended marriage, not marriage in being a widower or widow, shall be under the age of case of infants. twenty-one years, the consent required to such marriage shall be that of the person or persons mentioned in the Schedule to this Act: Provided that- (a) If the Registrar-General, to whom notice of an intended marriage is given, is satisfied that the consent of any person whose consent is so required cannot be obtained by reason of absence or inaccessibility, or by reason of his being under any disability, the necessity for the consent of that person shall be dis- pensed with if there is any other person whose consent is also required; and the consent of such other person shall be a sufficient consent for the purposes of this section. (b) If the consent of no other person is required (or if the consent of any other person whose consent is so required cannot be obtained by reason of absence or inaccessibility, or by reason of his or her being under any disability) the Registrar-General may dispense with the necessity of obtaining any consent; or (i.) The written consent to such marriage (in the form prescribed or to the like effect) of some justice of the peace appointed for that purpose as hereinafter mentioned may be- obtained; or (ii.) The Court may, on application being made~ consent to the marriage; and the consent of any such justice of the peace, or of the Court, as the case may be, so given, shall be a sufficient consent for the purposes of this section. Refusal of consent. (2.) If any person whose consent is required refuses his consent, the Court may, on application being made~ consent to the marriage, and the consent of the Court so given shall have the same effect as if it had been given by the person whose consent is so refused. Justice or (3.) Before giving any such consent, such justice or ; ~ ' : : : to the Court (as the case may be) shall make inquiry on inquiry. oath as to the facts and circumstances of the case. A o ft~ S s I t g a n t a ti u o r n es . . (4.) The signatures of any persons (other than such of pers~ ms JUstICe or Court) authorised to give consent to any .cauotnhsOernItS. ed to intended marriage shall be attested by a. ju . stice of the

OHILDREN. 12137 1928. Guardianship of Infants, Etc., Act. peace, registered minister, or district registrar, who shall previously ascertain that the parties understand what they are signing: Provided that where the husband and wife are living together, and the consent of both parties is necessary for the marriage, as is herein provided, it shall be a sufficient compliance with the provisions of this section if a declaration is made by the husband on behalf of himself and his wife, declaring that his wife and himself consent to the said marriage, or, if a declaration is made by the wife on behalf of herself and her husband, declaring that her husband and herself consent to the said marriage. (5.) For the purposes mentioned in provision (i) of Appoint paragraph (b) of subsection one of this section the Judges ~ : ~ ~ e~ . of the Supreme Court shall appoint from time to time one or more justice or justices of the peace in every Registrar's district who shall by virtue of such appointment give consent in such cases as aforesaid, and every such appointment shall be notified by the said Judges in the Gazette. (6.) This section is in substitution for sections ! ~l~ a~ o~ 19 eighteen and nineteen of *" The Marriage Act of 1864," of " rz: ~ and those sections are hereby accordingly repealed: - ; ~ ; ~ ' : : , ~ Act Provided that any appointment of any justice of the ~ ; ; ~ ~ t~ f peace made pursuant to the provisions of sections eighteen ments made * and nineteen of "The Marriage Act O 'J f 1864" shall for the ruenpdeearletdhe purposes of this section be and be deemed to be an sections. appointment of such justice of the peace under this section, and any such justice shall have the like powers and authorities as if he were appointed under this section accordingly. (7.) For the purposes of this section "the Court" Meaning of means and includes the Supreme Court or a court of "th e C our t . " summary jurisdiction constituted by a police magistrate. (8.) The power and authcrity to make Rules of ~~~:.o£ Court conferred on the Governor in Council with the concurrence of any two or more of the Judges of the Supreme Court by section eleven of t " The Supreme Court Act of 1921" shall include power and authority to make such Rules of Court as may be necessary or expedient to give full effect to the objects and purposes of this * 28 Vic. No. 15, supra, page 2041. t 12 Geo. V. No. 15, supra, page 9787.

12138 CHILDREN. Guardian8hip of Infant8, Etc., Act. 19 GEO. V. No. 4,1928. section, and where there may be in this section no provision or no sufficient provision in respect of any matter or thing necessary or expedient to give effect to this section, providing for and supplying such omission or insufficiency. Without limiting the generality of such provisions, such Rules may prescribe any forms of declaration or otherwise, and also may enable applications under this section, if made to such court of summary jurisdiction, to be heard and determined otherwise than in open court, and such Rules shall provide that, where an application is made in consequence of a refusal to give consent, notice of the application shall be served on the person who has so refused consent. SCHEDULE. CONSENTS REQUIRED TO THE MARRIAGE OF AN INFANT. 1.- Where the Infant i8 Legitima:te. Circumstances. Person or Persons whose Consent is required. - - -~ - --- -~ - ~ - - - - - - - - - - - - - - 1. Where both parents are living- (a) If parents living together Both parents. (b) If parents are divorced or The parent to whom the custody separated by order of of the infant is committed by court or by agreement order of any court or by the agreement; or, if the custody of the infant is so committed to one parent during part of the year and to the other parent during the rest of the year, both parents. (c) If one parent has been The parent who has been de- deserted by the other serted. (d) If both parents deprived The person to whose custody the of custody of infant by infant is committed by order order of court of the court. 2. Where one parent is dead- (a) If there is no other The surviving parent. guardian (b) If a guardian has been The surviving parent and the appointed by the de- guardian if acting jointly, ceased parent or the surviving parent or the guardian if the parent or guardian is the sole guardian of the infant. 3. Where both parents are dead The guardians or guardian ap- pointed by the deceased parents or by the court under section four of this Act.

CHILDREN. 19 GEO. V. No. 19, 1928. State Ohildren Acts Amendment Act. II.- Where the Infant is Illegitimate. Circumstances. Person whose Consent is required. 1. H the mother of the infant The mother, or, if she has by is alive order of the court been deprived of the custody of the infant, the person to whom the custody of the infant has been com- mitted by order of the court. 2. H the mother of the infant The guardian appointed by the is dead mother. 12139 An Act to Amend "The State Children Acts, 1911 to 19 Geo. v. 1924," in certain particulars, and to further T; o~: :~ Amend "The Criminal Code." CH~ ~: N B- [ASSENTED TO 14TH NOVEMBER, 1928.] ! ~ E: : ~ : : ' E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1 This Act may be cited as "The State Children Short title Acts Amendment Act of 1928," and shall be read as one ~ t. with *" The State Children Acts, 1911 to 1924," herein ~ ~ Acr: c Ion collectively referred to as the Principal Act. The Prinoipal Aot and this Aot may together be cited as "The State Ohildren Acts, 1911 to 1928." 2. The Prinoipal Aot is amended as follows :- Amendments of Principal Act. (i.) In seotjon twenty-four, before the words "If Section 24. any ohild" (ooourring at the oommenoement of the seotion) the words "Subject as hereinafter provided" are inserted. ( ii.) After seotion twenty-five the following new Section 25A. section is inserted:- "[25A.] Notwithstanding anything oontained in this Serious Aot or in any law to the contrary, in any oase offences. where a ohild is oonvioted on indiotment of wilful murder, murder, attempt to murder, manslaughter, * 2 Geo. V No. H, 8 Oeo. V. No. 13, and 15 Geo. V. No. 31, BUpra, pages 5076, 8272, and 10908. C