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
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
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.
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
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
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.
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.
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
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.
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)
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.
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)
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
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