Guardianship of Infants Act 1934 (NSW)

GUARDIANSHIP OF INFANTS

ACT.

Act No. 20, 1934.

An Act to amend the law with respect to the guardianship and custody and marriage of infants; to amend the Infants' Custody and Settlements Act of 1899, the Marriage Act, 1899, the Testator's Family Maintenance and Guardianship of Infants Act, 1916, and certain other Acts; and for purposes connected therewith. [Assented to, 31st October, 1934.]

1 . Tins Act may be cited as the " Guardianship of Infants Act, 1934."

lative Council and Legislative Assembly of New South BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis-

Wales in Parliament assembled, and by the authority of the same, as follows :—•

2 . The Infants' Custody and Settlements Act of

1899 is amended—

(a) by omitting section five and by inserting in

lieu thereof the following new section :—

5. (1) The Supreme Court in its equitable jurisdiction, may, upon the application of the mother 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.

The fact that a parent contemplates leaving the State shall not of itself be regarded as a reason for denying such parent the custody of the child or depriving such parent thereof if the court is satisfied that the welfare of the

child will best be served by allowing such

parent to have or retain such custody.

(2) The power of the court under this

section to make an order as to the custody of an

infant and the right of access thereto may

be exercised notwithstanding that tin; mother
of the infant is then residing with the father of

the infant.

(3) 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 main­
tenance of the infant such weekly or other
periodical sum as the court, having regard to the means of the father, may think reasonable.

(4) No such order, whether for custody

or maintenance, shall be enforceable and no liability shall accrue while the mother resides
with the father, and any such order shall cease to have effect if for any continuous period of three months after it is made the mother of the infant resides with the father.

(5)

(5) I n every case under this section the

court may make such order respecting the

costs of the mother and the liability of the

father for the same or otherwise as to costs as

it thinks just.

(6) The powers of the court under this

section to make orders regarding the custody

of an infant, and the right of access thereto

of either parent, may be exercised upon the

application of the father of an infant in like manner as those powers may be exercised upon the application of the mother of the infant.

(7) In any case in which a parent of an infant is dead, the court may, on the appli­ cation of any relative of that parent, make such order as to access to the infant by such relative as to the court seems fit.

(8) Any order made under this section may, on the application either of the father

or the mother or any guardian of the infant, be varied or discharged by a subsequent order.

(0) Orders may be made and enforced under this Act notwithstanding that proceed­ ings may have been instituted under the Matri­ monial Causes Act, 1899, by the father or the mother, or that an order has been made in the proceedings:

Provided that no order shall be made or

enforced under this Act in respect of any

matter where any order in relation to such

matter has already been made by the Supreme	Court in its matrimonial causes jurisdiction or
where at the date of any application made under this Act in respect of any matter, an application has already been tiled in that Court and is then pending in respect of such matter ;

Provided also that orders made under this

Act may be subsequently varied by the

Supreme Court in its matrimonial causes jurisdiction where the same subject matter arises in any proceedings within its jurisdietion

instituted in that Court. (b)

(b) by inserting next after section ten the following new sections :—

10A. (1) The jurisdiction conferred on the Supreme Court in its equitable jurisdiction by this Part may also be exercised by the district court of the district in which the respondent

or respondents or any of them reside, or by a

court of petty sessions nearest to the place of residence of the respondent or respondents or any of them:

Provided that—

(a)	such court of petty sessions shall be constituted by a stipendiary or police magistrate sitting alone; and
(b)	such court of petty sessions shall not

be competent—

(1) to entertain any application relating to an infant who has attained the age of sixteen years, unless the infant is physically or mentally incapable of self support, or the application is one for the variation

or discharge of a then subsisting
order of a court of petty sessions;
or

(ii)  to entertain any application involv­ ing the administration or applica­ tion of any property belonging to

or held in trust for an infant, or

the income thereof; or
(iii)	to award the payment of sums towards the maintenance of any infant exceeding the sum of twenty
shillings per Week.

(2) (a) Where a district court makes

or refuses to make an order on an application

under this section an appeal shall lie to the Supreme Court in its equitable jurisdiction in the manner prescribed by the rules of that court.

(b)

(b) "Where a court of petty

sessions makes or refuses to make such an

order an appeal shall lie to a court of quarter
sessions, and Part V of the Justices Act, 1902,
shall be deemed to extend to such an appeal:

Provided that where the application is made to a district court, and such court considers that the matter is one which would be dealt with more conveniently by the Supreme Court in its equitable jurisdiction, or where any such application is made to a court of petty sessions and such court considers that the matter is one which would be dealt with more conveniently by the Supreme Court in its equitable jurisdiction or a district court, the court to which the application is made may refuse to make any order, and in such case no appeal shall lie to any court against such refusal.

(3) An order of a district court or of a

court of petty sessions for the payment of money under this Part shall have the effect of and be deemed to be a judgment of the district court or of the court of petty sessions as the

case may be and shall be enforceable by pro- cess of court as in pursuance of such judgment.

(4) Where an order under this Part con­

tains a provision committing- to the applicant

or any other person the legal custody of

any infant, a copy of the order may be served,

on any person in whose actual custody the	infant may for the time being be, and if such
person makes default in complying with such provision he shall be liable on summary con­
viction to a penalty not exceeding five pounds
per day for each day he makes default in complying with such provision.
1 0 B . "When any application lias been made under this Part to a district court or to a court
of petty sessions, the Supreme Court in its
equitable jurisdiction may, at the instance of

any

any party to such application, order such application to be removed to the Supreme Court in its equitable jurisdiction and there proceeded with upon such terms as to costs of removal as it thinks proper.

10c. (1) Any person for the time being under an obligation to make payments in pursuance
of any order for the payment of money under

this Part shall give notice of any change of address to such person (if any) as may be

specified in the order, and any person failing

without reasonable excuse to give such a notice shall be liable on summary conviction to a penalty not exceeding ten pounds.

(2) Where any order for the payment

of money has been made in exercise of the powers contained in this Tart, the court making' the order shall, in addition to any other powers

for enforcing compliance with the order, have

power in any case where there is any pension

or income payable to the person against whom
the order is made and capable of being attached, after giving the person by whom tin pension cr income is payable an opportunity

of being heard, to order that such part as the
court may think fit of any such pension or
income be attached and paid to the person

named by the court, and such further order shall be an authority to the person by whom such pension or income is payable to make the

made shall be a good discharge to the person payments so ordered, and the receipt of the person to whom the payment is ordered to be by whom the pension or income is payable.

10D. In any question relating to the custody

or education of an infant in which is any con­ flict or variance between the rules of equity and

the rules of the common law with reference to the same matter the rules of equity shall prevail in all courts exercising jurisdiction under this Act.

(c)

(c) by inserting at the end of section three tin following new definition :—

" Maintenance " includes education.

3 . The Infants' Custody and. Settlements Act ci

1899 is further amended—

(a) by inserting next after section sixteen the following new Par t : —

P A R T IV.

Provisions applicable in all courts.

17. Where in any proceeding before any court (whether or not a court within the meaning of this Act ) the custody or upbring­ ing 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 considera­ tion, and shall not take into consideration whether from any other point of view the

claim by the father, or any right at common

law possessed by the father, in respect of such custody, upbringing, administration, or appli­ cation is superior to that of the mother, or the

claim of the mother is superior to that of the

father.

I n this section	"upbr ing ing"	includes
religious instruction.	18. The mother of an infant shall have the

like powers to apply to any court in respect of

any matter affecting the infant as are possessed

by the father.

(b) by inserting at the end of section one the following words and figures :—

P A R T IV.—Provisions applicable in all

courts—ss. 17 , 18.

4. (1) The Infants' Custody and Settlements Act of

1899, is further amended—

(a) by inserting in section four after the word

" procedure" the words " in the Supreme

Court and upon appeals thereto " ;

(b) by inserting at the end of the same section the following new subsections :—

(2) The district court judges or any four of them may make rules for regulating the practice and procedure upon applications made under Part I of this Act to district courts and for the enforcement of orders made upon such applications.

(3) The Governor may make rules for regulating the practice and procedure upon applications made under Part I of this Act to courts of petty sessions and for the enforce­ ment of orders made upon such applications, and for regulating the practice and procedure upon appeals to courts of quarter sessions under this Act.

(4) Any rules made under this Act shall—

(a) be published in the Gazette;

(b) take effect from the date of publication,

or from a later date specified in the rules ;

(c)	be laid before both Houses of Parlia­ ment within fourteen sitting days if Parliament is then in session, and if not, then within fourteen sitting days
after the commencement of the next
session.

I f either House of Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after the rules have been laid before such House dis­ allowing any rule or part thereof, the rule or part shall thereupon cease to have effect.

(2) The Infants' Custody and Settlements Act of 1899, as amended by this Act may be cited as the

Infants ' Curstody and Settlements Act, 1899-1934 .

5 . (1) The Testator's Family Maintenance and

Guardianship of Infants Act, 1916, is amended—

(a) by omitting sections thirteen, fourteen, fifteen, and sixteen, and by inserting in lieu thereof the following new sections :—

13. (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.

Where no guardian has been appointed by the father, or i f the guardian or guardians appointed by the father is or are dead or refuses or refuse to act, the court may, i f 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.

"Where 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.

14. (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 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)

(4) I f the mother or father so objects, •or if the guardian so appointed considers that

the mother or father is unfit to have the custody of the infant, the guardian may apply to the court.

The court may either refuse to make an 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.

"Where the court makes an order that the

guardian so appointed shall be the sole guardian

of the infant, the court 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 maintenance and educa­ tion 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.

The powers conferred by this subsection may be exercised at any time and shall include power to vary or discharge any order previously made in virtue of those powers.

(5) Where guardians are appointed by both parents, the guardians so appointed shall,

jointly.	after the death of the surviving parent, act	(6) I f 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 parent.

(b)

(b) by inserting at the end of section seventeen the following new subsection :—

(2) The power conferred by the foregoing provisions of this section shall include power to vary or discharge any order made under this

section or made by any court under the Infants'

Custody and Settlements Act, 1899-1934, and, where one of the guardians is the mother
or father of the infant, shall also include

power—

(a) to make such orders regarding the custody of the infant and the right of

access thereto 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 or education

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.

(2) Any question as to the validity of any order made before the commencement of this Act under the Testator's Family Maintenance and Guardianship of Infants Act, 1916, shall be determined as if this Act had commenced immediately after that Act.

6 . (1) The Testator's Family Maintenance and Guardianship	of	Infants	Act,	1916, is	further
amended—

(a) by omitting from section eighteen the words

" o f the A c t " and by inserting in lieu thereof

the words " of this A c t " ;

(b) by inserting at the end of section eighteen the following new paragraph :—

The powers of the court under this section extend to the removal of either parent from guardianship under this Act.

(2) The Testator's Family Maintenance and Guardianship of Infants Act, 1916, as amended by this

Act

Act may be cited as the Testator's Family Mainten­
ance and Guardianship of Infants Act, 191(3-1934.

7 .     (1) The Marriage Act, 1899, is amended—

(a) by omitting section nine and by inserting in

lieu thereof the following new section:—

9. (1) I f either party to any intended marriage, not having been previously married

or not being a widower or widow, is under

the age of twenty-one years, such marriage shall not take place without production to the person about to celebrate the same of the written consent of the person or persons mentioned in the Fifth Schedule to this

Act :

Provided that—

(a) if the person about to celebrate the marriage 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

dispensed with if there is any other person whose consent is also required and has been obtained, and if the con­ sent of no other person is required, or if
so required cannot for any of the

reasons aboyementioned be obtained, a

some justice of the peace appointed stipendiary or police magistrate or

for that purpose may in writing consent

to the marriage ;

(b) if any person whose consent is required refuses his consent, the court may, on application in the prescribed form, consent to the marriage.

(2) Before a consent is given pursuant

to paragraphs (a) and (b) of subsection one of

this

this section an inquiry shall be made on oath

or solemn affirmation as to the facts and
circumstances of the case.

(3) The consent of the court or of a stipendiary or police magistrate or justice of the peace to any marriage pursuant to this section shall have the same effect as if it had been given by the person whose consent cannot be so obtained or, as the case may be, is so refused.

(4) For the purposes of this section " t h e cour t" shall mean the Supreme Court in

its equitable jurisdiction or a judge thereof,

the district court of the district in which the minor resides, or the court of petty sessions nearest to the place of residence of the minor which is holden before a stipendiary or police magistrate sitting alone.

Every court exercising jurisdiction under

this section shall sit in camera unless the
court shall otherwise order.

(5) The form of applications to the Supreme Court or a district court and the procedure thereon shall be as prescribed by rules of court, or in the case of applications to

a court of petty sessions shall be as prescribed
by general rules made under the Justices Act ,

1902.

(b) (i) by omitting from subsection one of section

ten the words " Judges of the Supreme

Court " and by inserting in lieu thereof
the words " Registrar-General " ;
(ii)	by omitting from subsection two of the same section the words " said Judges " and
by inserting in lieu thereof the words " Registrar-General " ;
(c)	by omitting from the Fourth Schedule the words " Marriage Act, No. , 1899 , " wherever occurring and by inserting in lieu thereof the
words " Marriage Act, 1 8 9 9 - 1 9 3 4 . "

(d)

(d) by inserting" after Fourth Schedule the following new Schedule :—

F I F T H S C H E D U L E .

C O N S E N T S R E Q U I R E D T O T H E M A R R I A G E O P A N I N F A N T .

Circumstances. Person whose consent is required.

I .— Where the infant is legitimate.

1 . Where both parents are

living—

(a)	if the parents are	Both parents.
living together;

(b) if the parents are	The parent to whom the
divorced or separated	custody of the infant is
by order of court or	committed by order of
by agreement;	any court or by the agree­ ment, or if the custody of the infant is so committed to one parent during a period of time and to the other parent during another period or periods
of time, both parents.
(c) if one parent has been	The parent who has been
deserted by the other ;	deserted.
(d) if both parents have	The person to whose custody
been deprived of the	the infant is committed
custody of the infant	by order of any court.
by order of any 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 jointly, or the surviving parent or the guardian i f
appointed by the de­	the guardian if acting
ceased parent.
the parent or guardian is
the sole guardian of the infant.

3. Where both parents are The guardians or guardian appointed by the deceased parents or by any court, or if no such guardian has been appointed, a stipen­ diary or police magistrate or justice of the peace appointed in that behalf in accordance with section ten of this Act.

dead,

F I F T H

F I F T H SCHEDULE—continued.

CONSKNTS REQUIRED TO THE MARKIAGE OF AN INFANT----

continued.

Circumstance?. Person whose consent is required.

I I . — Where the infant is illegitimate.

I f the mother of the infant is The mother, or if she lias by order of any court been deprived of the cus­ tody of the infant, the person to whom the cus­ tody of the infant has been committed by order

alive.

of the court.

If the mother of the infant is The guardian appointed by the mother or by any court, or if no such guar­ dian has been appointed, a stipendiary or police magistrate or justice of the peace appointed in that behalf in accordance with section ten of this Act.

dead.

(2) The Marriage Act, 1899, as amended by the Marriage (Amendment) Act, 1924, the Marriage (Amendment) Act , 1925, the Marriage (Amendment)

Act, 1934, and this Act, may be cited as the Marriage

Act, 1899-1934 .

(3) Any person appointed pursuant to section ten of the Marriage Act, 1899, prior to the commencement of this section and whose appointment is at such

commencement in force shall be deemed to have been

appointed pursuant to the Marriage Act, 1 S 9 9 - 1 9 3 1 .

(4) This section shall commence on a day to be

appointed by the Governor and notified by proclamation
published in the Gazette.

C O M P A N I E S