Legitimacy of Children, Adoption and Related Issues

271. Status of Children. A direct and obvious consequence of non-recognition of traditional marriages by the general law is that the children of such marriages are considered ‘illegitimate’ or ‘ex-nuptial’. Until recently the status of illegitimacy carried with it, apart from a certain social stigma, significant legal disabilities especially in areas of custody and property.[2] This is still the case in the Australian Capital Territory, which as yet has no status of children legislation. In all the States and the Northern Territory , the position of ex-nuptial children (as they are now called) has been markedly improved: for many purposes, in particular so far as property is concerned, there is now no legal difference between nuptial and ex-nuptial children.[3] However the status of children legislation does not abolish the concept of ‘legitimacy’ but renders it irrelevant for many purposes. It remains relevant in a number of ways such as for the purposes of consent to adoption,[4] or the registration of names. There is evidence that this causes resentment.[5] The recognition of traditional marriage for the purposes of legitimacy of children born of that marriage is a minimum consequence of the legal recognition of traditional marriage for any purpose at all. Not only does legitimacy continue to entail residual legal consequences which can be important, but the concept of legitimacy has important overtones of value and acceptance. A legitimate child is proclaimed to belong to its parents, to the family union of which it is a product, in a way that an illegitimate or ex-nuptial child is not. At present (except in the Northern Territory) this status is withheld from many Aboriginal parents and children. In the Northern Territory, the children of a traditional Aboriginal marriage are specifically treated as the children of a ‘marriage’, and are thus legitimate.[6] No difficulties have arisen from this position. The children of a traditional marriage should be recognised as legitimate or nuptial children for all purposes of Australian law.

272. Adoption and Fostering of Children. The non-recognition of traditional marriage and of the characteristics of Aboriginal family structures in State and Territory adoption and child welfare legislation has had, and to a degree continues to have, a severe effect on the integrity of Aboriginal communities. In the words of one authority ‘current adoption law and practice is ... contributing to the disintegration of Aboriginal culture since it fails to take account of Aboriginal family law’.[7] The point is also made in the Policy Guidelines on Aboriginal Adoption and Fostering, prepared by the Department of Aboriginal Affairs but deriving from the proceedings of the First Australian Conference on Adoption (1976). The Guidelines state that:

The disproportionately high incidence of Aboriginal Children in non-parental care or custody is probably related to the social, economic and environmental disadvantages suffered by Aboriginal families and their typical isolation from community and legal services; nevertheless it is viewed with concern. There is no reason to believe that Aboriginal children will necessarily benefit from being removed from parents despite unsatisfactory living conditions; they could be ultimately penalised by such removal. Measures to support the Aboriginal child in the family/community environment will necessarily include:

  • recognition for Aboriginal customs, marriage laws and community structure, particularly as these affect the payment of benefits and the legal rights of children: and

  • a review of existing welfare practices and services to ensure that they complement and reinforce (rather than ignore and thereby frustrate) ‘self-help’ fostering practices in traditional Aboriginal society.[8]

For present purposes it is necessary to discuss a number of specific problems which arise from the non-recognition of traditional marriages in legislation on adoption and related matters of child custody. The general issues dealt with by the Guidelines will be discussed in Chapter 16.

273. Parental Consent to Adoption: The Present Law. State and Territory legislation providing for parental consent to the adoption of children falls into several different categories. In Queensland, Tasmania and Western Australia a father’s consent to the adoption of his child is not required if the father was not married to the mother when the child was born and has not subsequently married her, unless the father happens also to be the ‘guardian’ of the child.[9] In the Australian Capital Territory (where there is no status of children legislation) a similar result is achieved by use of the old term ‘illegitimate’: in the case of an illegitimate child only the consent of ‘every mother or guardian of the child’ is required.[10] In South Australia and the Northern Territory the law is more consistent with the policy underlying the status of children legislation, in that (in the case of adoption of an ex-nuptial child) the consent of a father whose paternity has been formally acknowledged under that legislation is also required.[11] This is also the case in Victoria, with the addition of certain other situations where the father has custody or responsibility for the child’s maintenance.[12] New South Wales has taken a rather different approach: with one exception, the father of an ex-nuptial child has no right to consent to the child’s adoption, but the proponents of the adoption are under a duty to inform the father that adoption proceedings are pending, thus giving him the opportunity to apply for custody of the child (or apply to adopt).[13] In addition the father of a child who lived with the mother ‘after the child’s birth as husband and wife on a bona fide domestic basis in a household of which the child formed part’ must consent to the child’s adoption.[14]

274. Implications for Traditionally Married Persons. Except in the Northern Territory it seems clear that traditionally married persons would not be regarded as ‘married’ for the purposes of this legislation.[15] It follows that, unless a traditional husband and father was also a ‘guardian’ of the child with in the meaning of the legislation, or was qualified as a de facto or a putative spouse in those States where this is relevant, his consent to the adoption of the child would not be required (and, except in New South Wales, the adoption proceedings might be concluded without any attempt to give him notice or an opportunity to participate). Of course, recognizing traditional marriage for this purpose would not give the father a right of veto over the adoption. In all States and Territories, the relevant court or tribunal may dispense with any consent required for adoption, in appropriate cases. But, in general, courts are reluctant to dispense with consent in the absence of ‘serious parental misconduct or other serious inadequacy of that parent’.[16] Recognition of traditional marriage for this purpose would therefore give the husband a say in the adoption which the law in most States presently denies him.

275. Recognition of Traditional Marriage for this Purpose. Reference has already been made to the view that adoption of Aboriginal children outside Aboriginal families or communities is destructive of the integrity of those families and communities. The extension of the right to consent to adoption to Aboriginal fathers of children born within a traditional marriage will not necessarily remedy this problem. An Aboriginal father may consent to adoption or, if he has shown no direct interest or concern for the child, his consent may be waived. But to extend the right to consent to adoption to Aboriginal fathers with respect to children born as a result of a traditional marriage will make the adoption of Aboriginal children more difficult, in situations where there is justified opposition from one of the parents of the child. It will thus indirectly contribute to remedying the problems referred to in para 272. In the absence of special factors, traditional marriages ought to be treated no less favourably than marriage under the general law, for the purposes of status and the right to custody of children born of such a marriage. To treat Aboriginal children as ‘ex-nuptial’ (and consequently to diminish parental rights) is to treat such children as not belonging in any full or real way to the family unit, and thus to deny the legitimacy of Aboriginal marriage. No countervailing factors exist here. Fathers of children born as a result of a traditional marriage should have the same right as a father of a child born as a result of marriage under the general law, to consent to the adoption of the child. The consent of both parents should be required to the adoption of a child of a traditional marriage.

276. Qualification to Adopt. Probably a more significant problem is the fact that most State legislation disqualifies Aborigines who are traditionally married from adopting a child except in ‘exceptional circumstances’. Even where there is an Aboriginal family, able and willing to adopt an Aboriginal child and meeting all other criteria for adoption, that family may not be qualified to do so. The result may be that the child is placed outside its own community, or in institutional care, The problem has been documented both in the literature and in the evidence to the Commission. According to Sommerlad:

Finding homes for full-blood children with full-blood families is complicated by the requirement that adoptive parents be legally married.[17]

Similarly, the Commission was told in evidence that:

Traditional marriage is not legally acceptable yet ... That comes up with us with adoption.[18]

[Aboriginal parents] go through all the normal adoption procedure: they apply and are assessed and a placement is made — all the same steps but it is never formalised because they are not married according to Australian law. Aboriginal people find that very hard to understand because they think they are married. Why can't their adoption be processed by the court?[19]

The reason for these difficulties is the qualification provisions in most Australian adoption legislation. For example the Adoption of Children Act 1896 (WA) s 4 provides:

(1) Except as provided by this section, an order of adoption shall not be made otherwise than in favour of a husband and wife jointly.

(2) Subject to subsection (3) of this section, where a Judge is satisfied that in the particular circumstances of the case it is desirable to do so, the Judge may make an order of adoption in favour of one person.

(3) A Judge shall not make an order of adoption in favour of one person if that person is married and not living separately and apart from his or her spouse unless that person’s spouse consents in writing to the application for the order of adoption.[20]

Although the Northern Territory Supreme Court has held to the contrary,[21] the view that is taken by adoption courts and authorities is that traditionally married persons do not count as married persons (or ‘husband and wife’) for the purposes of such pro visions. In consequence, a traditionally married husband and wife cannot jointly adopt a child in any circumstances. De facto partners cannot jointly adopt a child, even where one partner is the natural parent of the child.[22] Further, the making of an or der in favour of one person requires ‘exceptional circumstances.’

277. Recent Developments. In the Commission’s Discussion Paper 18 it was suggested that traditional marriages should be recognised for the purpose of qualification to adopt children.[23] This tentative view received general support.[24] Subsequently, legislation was passed in the Northern Territory and Victoria to bring about the recommended result.

  • Adoption of Children Amendment Act 1984(NT) s 6(3):

For the purposes of this Act, an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as a traditional marriage by the community or group to which either Aboriginal belongs is married to that other Aboriginal and all other relationships shall be determined accordingly.

  • Adoption Act 1984 (Vic) s 11(1)(b):

An adoption order may be made in favour of a man and woman -

whose relationship is recognized as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong and has been so recognized for not less than two years ...[25]

The position in the other States remains unchanged.[26]

278. The Commission’s Recommendation. As the Royal Commission on Human Relationships pointed out,[27] the practical disqualification of traditional Aborigines from adopting Aboriginal children, effected by the prerequisite of Marriage Act marriage and the prohibition of any other form of joint adoption, cannot be justified. Of course, the decision to make an adoption order in favour of particular parents requires a variety of matters to be taken into account. But the point is that, if these rules apply, the adoption court or authority cannot, in ordinary circumstances, even consider traditionally married Aborigines as qualified to adopt. Thus the policy, already adopted by some State and Territory welfare authorities, ‘to place Aboriginal children with Aboriginal families’ where possible,[28] is frustrated by the ‘constraint of legal marriage’.[29] Persons who are traditionally married should be qualified, in the same way as persons married under the Marriage Act 1961 (Cth), to adopt children under State and Territory law.

279. Fostering and other Child Custody Arrangements. To the extent that State and Territory legislation imposes similar qualifications for child custody or fostering, based on marriage under the general law, or differentiates a traditional husband and father’s rights from those of a Marriage Act husband and father,[30] the same recommendation applies.[31]

[2]R Sackville & A Lanteri, ‘The Disabilities of Illegitimate Children in Australia: A Preliminary Analysis’ (1970) 44 ALJ 5.

[3]For the legislation see Children (Equality of Status) Act 1976 (NSW); Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic). There is no single Act in Western Australia. Instead specific amendments have been made abolishing the distinction of legitimacy for particular purposes: eg Inheritance (Family and Dependants Provision) Act 1972 (WA), s 4(1) definition of ‘child’. On the consequences of status of children legislation cf Douglas v Longano (1981) 55 ALJR 352. Generally, see H Gamble, The Law relating to Parents and Children, Law Book Co, Sydney, 1981, 223-51.

[4]MA Neave, ‘The Position of Ex-nuptial Children in Victoria’ (1976) 10 Melb UL Rev 330, 347. For the present position see para 273.

[5]eg J Bucknall, Transcript of Public Hearings Strelley (23 March 1981) 315-6. On questions of naming see also HC Coombs, MM Brandl, WE Snowdon, A Certain Heritage. Programs for and by Aboriginal Families in Australia, CRES, ANU, Canberra, 1983, 314.

[6]Status of Children Act (NT) s 3 definition of ‘marriage’, s 5(1) & (3). For transitional questions see para 269.

[7]E Sommerlad, ‘Homes for Blacks: Aboriginal Community and Adoption’, in C Picton (ed) Proceedings of the First Australian Conference on Adoption, Committee of the First Australian Conference on Adoption, Clayton, Victoria, 1976, 160.

[8]Department of Aboriginal Affairs, Doc B 10.3 (January 1980) 1-2. For discussion of the current position under State and Territory child welfare and adoption legislation see para 352.

[9]Adoption of Children Act 1964 (Qld) s 19(2) & (3); Adoption of Children Act 1968 (Tas) s 21(2); Adoption of Children Act 1896 (WA) s 4A(2) & (3). The term ‘guardian’ is defined in each Act to include a custodian of a child by order of a court and a person deemed to be guardian of a child under Commonwealth, State or Territory law. It is not clear whether a father of an ex-nuptial child with de facto custody and care of a child would be regarded as a ‘guardian’ for these purposes. See generally W v H [1978] VR 1, where the position of a putative father in adoption proceedings is thoroughly discussed.

[10]Adoption of Children Ordinance 1965 (ACT) s 24(2) & (3).

[11]Adoption of Children Act (NT) s 21(2). Provision is made for staying the adoption proceedings pending the father’s application for a declaration of paternity: s 21(3). The equivalent South Australian provisions are Adoption of Children Act 1966 (SA) s 21(2) & (3).

[12]Adoption Act 1984 (Vic) s 33(3). The Act recognises traditional marriages for the purposes of eligibility to adopt (see para 277) but not consent to adoption.

[13]Adoption of Children Act 1965 (NSW) s 26(2), (3) & (3A) (consent to adoption), 31A-E (notice to putative fathers, etc).

[14]id, s 26(3)(b) inserted by the Adoption of Children (De Facto) Relationships Amendment Act 1984 (NSW). See NSWLRC 36, Report on De Facto Relationships, Sydney, 1983, 286-9.

[15]The Adoption of Children Amendment Act 1984 (NT) inserted a new provision in s 6 to recognize traditional marriage for the purposes of the Act. See para 277.

[16]K v H (1967) 11 FLR 34, 35 (Blackburn J).

[17]Sommerlad, 160. cf also EA Sommerlad, ‘Aboriginal Children belong in the Aboriginal Community: Changing Practices in Adoption’ (1977) 12 Aust J Soc Issues 167, 171-2.

[18]C Adams, Transcript Nhulunbuy (10 April 1981) 1273.

[19]W Neil, Transcript Nhulunbuy (10 April 1981) 1274.

[20]s 6 adds:

Except by husband and wife, as herein before mentioned, no child shall be adopted by more than one person.

Equivalent provisions are: Adoption of Children Ordinance 1965 (ACT) s 17(1)-(3); Adoption of Children Act 1965 (NSW) s 19(1)-(3); Adoption of Children Act 1966 (SA) s 11(1)-(3), (6); Adoption of Children Act 1968 (Tas) s 13(1)-(3).

[21]In an unreported decision of 10 September 1981, Forster CJ made an order for the adoption of an Aboriginal child jointly by two traditionally married Aborigines. His Honour declined to make an order in favour of the wife only, holding instead that the reference to ‘husband and wife jointly’ in the Adoption of Children Act 1964 (NT) s 12 included with respect to full blood Aboriginal persons living a traditional life and seeking to adopt a full blood Aboriginal child, persons who are married according to tribal custom and who feel themselves bound by that custom. His Honour was, on the evidence, satisfied that the other criteria for the making of an order were fulfilled. Hon Sir William Forster CJ, Submission 313 (7 April 1982).

[22]Except in NSW where the partners to a de facto relationship may be eligible to adopt: Adoption of Children Act 1965 (NSW) s 19(1A)(1B) (inserted 1984).

[23]ACL DP 18, para 16.

[24]The South Australian Minister for Community Welfare (The Hon J Burdett MLC) wrote:

I support the Commission’s view that Aboriginal couples who are recognised as being tribally married should be eligible to jointly adopt a child. I understand that tribally married couples are easily identifiable within their own local communities or the communities from which they originate. It may be advisable to negotiate with these communities on the kind of evidence they could provide which would make the couples recognisable as being tribally married. In the matter of consent for the adoption of an Aboriginal child born to a tribally married woman I believe not only the consent of the woman concerned and her husband but also the consent of the appropriate tribal elders should be given.

Submission 335 (27 May 1982). To similar effect, NT Minister for Community Development (Hon J Robertson MLA), Submission 331 (18 May 1982). See also Commissioner for Community Relations (Hon AJ Grassby), Submission 344 (6 September 1982) 2; Minister for Community Welfare Services (Vic) (Hon P Toner) Submission 347 (10 September 1982) 1; Department of Capital Territory (AS Blunn) Submission 348 (24 September 1982) 1.

[25]For the recognition of traditional marriage under the Children (Guardianship and Custody) Act 1984 (Vic) s 12(12) see para 283.

[26]Though traditional spouses may qualify under the NSW de facto provision: see para 276 n 22.

[27]Report, AGPS, Canberra, 1975 vol 4, 126. Although reserving generally the question of recognition of traditional marriage for this Commission, the Royal Commission felt strongly enough on this issue to recommend specific reform.

[28]See para 359-64.

[29]Sommerlad, 160.

[30]eg Children’s Services Act 1965 (Qld) s 105.

[31]This is already the case in Victoria under the Children (Guardianship and Custody) Act 1984, s 12(1), which allow guardianship and custody orders to be made in favour of certain relatives including ‘spouses’, defined under s 12(12) to include: a person whose relationship with the parent or relative is recognised as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong.