SA Parliamentary Hansard
November 5, 1975
HOUSE OF ASSEMBLY
Adjourned debate on second reading.
(Continued from October 28. Page 1471.)
Mr. VANDEPEER (Millicent): I support this Bill as one of a series of 10 introduced to relieve the situation in our
community of the child that is born illegitimate. I commend the Government for its action and I also commend the Law
Reform Commission, which conducted the investigations that virtually brought these Bills into being. Although I commend
the Government and support the Bills, and although I cannot say too much in this House for trying to relieve the burden that
has been placed on illegitimate children over the years, we here have the right to criticise certain aspects of the Bill.
In criticising, I should also like to comment on the appalling apathy that seems to come from the Government benches when
we are discussing Bills that I consider are probably some of the most important Bills concerning our community and our family
life.
Mr. Mathwin: There are only three Government members present.
Mr. VANDEPEER: There are a few more now, but there were only three members on the Government benches a few minutes
ago. These Bills are extremely important to our community. They are family relationship Bills and these changes could be felt
in our community for many years. If there are any faults in them, now is the time to find them, not after the Bills have been
passed. The Bill we are concerned with at present deals with those estates where the deceased has not left a will. I will
not make many comments about this Bill, as the measures are all tied in together, and in many respects the comments on the
first Bill will cover all 10 Bills.
The introduction of the term “putative spouse” in the Bill before us could have quite an effect on many
people in the community. I do not really know what sections of the community could be involved, and I do not know that one
section would be concerned more than another. However, I should like to warn that, with the introduction of the provision
regarding the putative spouse, if anyone dies without leaving a will and that person has had a de facto relationship,
if the person with whom the de facto relationship has been had takes the trouble to be identified as such and as a
putative spouse under the Family Relationships Bill, the estate can be split between the lawful spouse and the putative spouse.
In many respects, I think it is correct to make this provision, because I feel that the Law Reform Commission has considered
that it is the only way to give legitimacy to the children involved, but I feel that, in some respects, it could be rather
hard. I can imagine situations where two people live in lawful wedlock and the husband, not being the honest gentleman that
he should be, perhaps has a de facto relationship. However, the lawful spouse may be a good-living person and a good
member of our community and, if she has a husband who has a de facto relationship with someone else, a cruel situation
could develop; on the death of her husband, a putative spouse may identify herself and lay claim to half of the estate. So,
this provision could operate cruelly in a few cases. The Law Reform Commission has considered this matter carefully and, probably
after taking into account these difficult cases, it sees no other way around the question of giving legitimacy to the children
of a putative spouse. Nevertheless, we should very carefully consider the principle involved.
The Bill applies only to intestate estates, thereby limiting the number of people affected. At one stage I questioned
the principle in the Bill concerning the lawful spouse and the putative spouse, whereby the lawful spouse could take personal
goods and chattels before the estate was split. At one stage I thought that this would apply also to a situation where the
putative spouse was claiming half of the estate, but apparently this is not so. I hope the Attorney-General has considered
this provision carefully. The remainder of the Bill is almost mechanical; among other things, it repeals certain Imperial
Acts covering probate. On the whole, I support the Bill, but one or two clauses concern me.
Bill read a second time.
In Committee.
Clauses I to 9 passed.
Progress reported; Committee to sit again.
ADOPTION OF CHILDREN ACT AMENDMENT BILL -
Adjourned debate on second reading.
(Continued from October 28. Page 1471.)
Mr. ALLEN (Frome): I support the Bill. I am sure that everyone will agree that the member for Mount Gambier adequately
covered the principles involved in this Bill and in the other Bills on the Notice Paper that have the same basic aim. Hitherto,
the consent of the father of an illegitimate to the adoption of that child has not been required; indeed, the father’s
consent was not only not required but there was no provision for him even to be notified that the mother was about to place
the child for adoption. Thus, situations could arise where the mother and father had been living together for a considerable
period and had several children which the mother could consent to being adopted. The father, even if he wished to keep the
children himself, could not prevent adoption. I agree with this aspect of the Bill, particularly where the mother and the
father of the children had lived together in a de facto relationship and where the father had maintained the mother
and the family. It could well be that after many years the mother, under the previous set-up, could have the children adopted
without the father’s consent. I therefore support the new provision.
Clause 4 extends the classes of person whose consent is required for an adoption to cover the father of a child born
outside marriage. However, in order to prevent undue delay in adoption procedures arising from this amendment, a provision
is included to the effect that the father must have taken the appropriate steps for obtaining recognition of his paternity
before the consent of the mother becomes irrevocable; that is, within 30 days after she signs the instrument of consent. The
father could have obtained recognition of his paternity and paid maintenance toward the upkeep of the child for a number of
years. I believe that in this case the father should have equal rights to those of the mother as regards the adoption of the
child.
The point I am not happy about relates to the situation where the father could obtain recognition of his paternity
and then disappear for quite a few years without maintaining the child. He could reappear just prior to the mother’s
taking the necessary steps for adoption, and he would have an equal right to a say as to whether that child was to be adopted,
even though he had not contributed in any way to the maintenance of the child. Although the Attorney-General partly dealt
with this matter when he replied to the debate on the Family Relationships Bill, I should like him to give a further detailed
explanation of the matter. I also point out that the Australian Capital Territory ordinance giving rights to homosexuals to
marry and adopt children is not likely to become law; nor would it affect South Australian law if it became an A.C.T. ordinance.
This Bill does not give homosexuals any rights to adopt children in South Australia. With those remarks, I support the Bill.
Bill read a second time.
In Committee.
Clauses 1 and 2 passed.
Progress reported; Committee to sit again.
BIRTHS, DEATHS AND MARRIAGES REGISTRATION
ACT AMENDMENT BILL
Adjourned debate on second reading.
(Continued from October 28. Page 1471.)
Mr. MATHWIN (Glenelg): I support the Bill, which follows the principles established by the Family Relationships
Bill. At present, a mother must acknowledge her parenthood and sign a certificate as such. Once she does so, a mother shoulders
all the responsibilities and obligations of parenthood, whereas the father has the right to choose whether or not to sign
a certificate. He can discuss the matter with the mother and, if he so desires, sign the certificate. Clause 4 provides for
the procedure to be followed in registering the birth of a child born outside marriage. The mother of such a child is not
obliged to state the paternity of the child but, if she does, the alleged father will be invited to acknowledge paternity.
Clause 4 also deals with the reregistration of birth upon legitimation of a child. It amends section 19 of the Act
by striking out from subsection (2) the passage “enter the words ‘not stated’ in the column of the certificate”
and inserting in lieu thereof the passage “enter the words ‘paternity not acknowledged’ in the column of
the certificate”. Clause 4 also strikes out subsections (3) and (4) of section 19 and inserts new subsections (3)
and (4). New subsection (3) provides as follows:
Where a child is born out of lawful marriage—
(a) the mother need not furnish particulars relating to the paternity of
the child
I support this aspect of the Bill. If a child is born out of marriage, and its father takes steps to recognise paternity,
the father would, if the possibility of an adoption arose, have equal rights (as one of my colleagues said in the debate on
another related Bill earlier this evening) in relation to the adoption. Previously, however, the father’s consent was
not required.
Once this happens, a father will have rights equal with those of the mother. This may or may not be desirable in some
cases. Nevertheless, these amendments are generally a step in the right direction, and have no doubt been introduced
on the advice of the committee that was set up to examine this matter. With those few remarks, I support the Bill.
Bill read a second time and taken through its remaining stages.
COMMUNITY WELFARE ACT AMENDMENT BILL
Adjourned debate on second reading.
(Continued from October 28. Page 1472.)
Mr. WOTTON (Heysen): I support the Bill, which contains amendments that are necessary as a result of the provisions
contained in the Family Relationships Bill, which was so capably handled this evening by the member for Mount Gambier. I do
not believe there is a member of this House who does not agree that the social stigma attached to illegitimacy must be removed.
The number of illegitimate children is increasing each year. In 1970-71, 1 701 children were born illegitimately. In 1974-75
the number had increased to 1 926. At the end of last year, between 2+ per cent and 3+ per cent of all children in Australia
were born illegitimately. The Bill is straightforward, and contains several consequential amendments that are necessary as
a result of the provisions of the Family Relationships Bill. All references to illegitimacy have been removed from the
principal Act by removing various definitions from the Act, including those of “relative”, “near-relative”,
“affiliation”, etc. The old concept of “child of the family” is removed because of confusion created
by certain of the new amendments that relate to that matter. New section 6 (3) provides:
A person shall not be recognised under this Act as the father of a child born outside marriage unless—
(a) he is so recognised under the Family Relationships Act, 1975;
or
(b) he is adjudged
in proceedings under this Act to be the father of the child.
Reference is also made to “step-father” and “step-mother” to simplify the Act. Under the provisions
of this Bill it is necessary to have the consent of both parents before an order can be made to place the child under the
care and control of the Minister. That can be done only if the father has taken the appropriate steps to obtain recognition
of his paternity before the date of the order. If the father has not taken such a step, his consent will not be required,
and the present situation will still obtain, where the consent is needed only of the mother in the case of an illegitimate
child.
In the case of an illegitimate child, the father, mother’s husband, and mother, in that order, as near relatives
of a child, are responsible to contribute towards the cost of maintenance under the provisions of the principal Act. With
the removal of the distinction between the liability of maintenance for a legitimate child on the one hand, and an illegitimate
child on the other, the father, mother, step-father and step-mother, in that order, will be responsible. Because of the
removal of the concept of illegitimacy, it is necessary to re-enact certain sections of the principal Act that deal with an
order for the payment of funeral expenses of a deceased child.
I have said that the Bill is straightforward, but one aspect of the 10 Bills we are now discussing (and I might be
considered old-fashioned in this view) concerns me greatly. Several organisations and a number of doctors have pointed out
to me that this is yet another case of making it easier for the unmarried mother to keep a child when most of these organisations
and doctors would prefer that the child, for its own sake and to obtain its rights, should be adopted. Dr. F. Grunseit (who
is the honorary paediatrician at the teaching hospital at the New South Wales University) stated at the Rights of the Child
Conference in Canberra, in a paper entitled “The Child— Rights and Wrongs”:
"To be born illegitimate is to be born disadvantaged. Children born to single mothers fall into a group of deprived
children. Formerly most illegitimate children were surrendered by their mothers for adoption immediately following birth.
This is no longer so. In the last few years, there has been a very rapid decline in the number of babies available for adoption.
The child born to a single mother is more likely to be kept by her. There has been an improvement, albeit small, in the economic
conditions of, as well as in the acceptance by society of, the single mother. However, child care facilities for working mothers
are still quite inadequate. On the whole, the status of these women and their children has not improved a great deal. Whether
children with only one parent develop satisfactorily is open to question. The time during which mothers have kept their babies
born out of wedlock is too short for valid conclusions to be drawn, at least here in Australia. Single mothers have so much
to cope with that it takes very little additional strain, economic or emotional, to cause breakdown. Our society— and
I repeat that the society Dr. Grunseit represents is the teaching hospital of the New South Wales University-does not
approve of young girls who have babies and decide to keep them. Girls often as young as 14 to 16 are still going through their
own process of growing up and are ill equipped to cope with the major responsibility of pregnancy, birth and motherhood. Nor
will a few interviews with a social worker substantially alter their ability to cope with a very stressful situation. Their
experience may help them to grow up, but what of their children? They have no choice but to struggle along with their immature
mothers. The mother’s right to her child is guaranteed, irrespective of her age. The rights of the child are not clear."
The rights of the child concern me greatly. From advice I have been given by organisations such as the Mothers and
Babies Health Association, I believe that a child can be better looked after in many instances by being adopted at an early
age rather than by having to put up with the consequences of being born to a single mother and thereby putting up with much
stress during the early part of his life. Much discussion has revolved around these Bills this evening. The member for Mount
Gambier adequately handled the Family Relationships Bill. Because the Bill we are now debating is a straightforward Bill,
I have much pleasure in supporting it.
Bill read a second time.
In Committee.
Clauses 1 and 2 passed.
Progress reported; Committee to sit again.
GUARDIANSHIP OF INFANTS ACT AMENDMENT
BILL
Adjourned debate on second reading.
(Continued from October 28. Page 1473.)
Mr. CHAPMAN (Alexandra): Although I support the principle embodied in this Bill, I remind the Attorney-General that
I am disappointed that he has refused this evening to delay the passage of the nine Bills that constitute the family
reform legislation that he introduced into the House on October 28. I accept that previous Bills debated this evening have
reached the Committee stage and that we now have no alternative but to proceed and support at least the principle of protecting
the rights of fathers and granting them the opportunity to apply for, to qualify for and, where desirable, to gain custody
of their children. The most disturbing aspect of the guardianship of children that has occured in the past, in the case of
children born out of wedlock, has been where the mother either has not been available, has died, or has not been able to take
the guardianship of her child and the father has been denied the right to gain custody. Almost without exception, the child
has been taken into an institution or its guardianship has been taken over by the parents of the mother. Whilst many
grandparents have taken care of their illegitimate grandchildren and have done a fine job in attending to their welfare,
generally speaking it is quite undesirable that babies should be put into the care of their grandparents where any other
institutional or direct parentage or guardianship is available.
For that reason, I believe the provisions of the Bill dealing with the rights of the father are of sound merit, and
certainly they should lead not only to the interest and comfort of the father, as identified, but, in the right circumstances
and in proper surroundings, where the services can be extended by the male parent, such action is in the interests of the
child. It was brought to my attention earlier today that perhaps fathers of such children were not as capable of caring for
them as were their mothers. I took some general and personal exception to the comment embodied in that remark. I do not wish
to ventilate the details surrounding the case, but I can assure the House that I have been directly associated with a situation
in which four tiny children were left in my care. I am proud to suggest that the male parent, as has been proved in these
circumstances, can provide both the love and the attention the children deserve and require. In such a situation the male
parent can do this equally as well as can the mother. I am pleased indeed that the Attorney-General and his staff have seen
fit to incorporate in the legislation the equal rights of the parents, male and female.
One point that causes me some concern relates to the situation where, within the required time after the birth of a
child born out of wedlock, the mother may arrange its adoption, as was explained earlier by the Attorney-General. If the arrangements
are made within five days after the birth of the baby, the mother has declared not only her intention to have the child adopted
but also that she has no desire to carry on the mothering of the child. If, within 30 days after that five-day period has
expired, the father should take action to keep the child, it may be that the mother, having some good reason to believe that
the father cannot carry out the duties of caring for and attending to the child, could herself seek, in the interests of the
baby, to take over the guardianship.
In those circumstances, the problem could arise where a mother, not fully equipped but considering herself better equipped
than the father of the child, could be burdened for a period, not only causing distress to herself but placing herself and
the child in circumstances quite outside their best interests. I do not know whether the Attorney, in his conversation with
his colleague, has missed the point to which I have referred, but I should like him, as soon as possible after this Bill comes
back into this Chamber for discussion, to clarify the position in relation to the mother who gives away her rights of guardianship
and arranges for institutional care of the baby within the five-day period after birth, the father lays claim to guardianship,
and she, understanding his stability, sets out to gain guardianship in the interests of the child.
Such a situation could be disturbing to all concerned, particularly where the mother has declared that she does not
want the child in the first instance but has found herself in the dilemma of having to establish that she is the better equipped
to care for the baby’s welfare. I shall be otherwise engaged on Parliamentary duties with several members from the other
side and one from this side in a few moments. Having mentioned the areas of the Bill that should be looked at more closely
before it continues its passage through the House, I am quite willing to support the principle in the Bill.
Bill read a second time.
In Committee.
Clauses 1 and 2 passed.
Progress reported; Committee to sit again
