The Chairman of the Repatriation Commission has forwarded for advice the following memorandum:

On 1 December 1916 the mother of Lucy and Robert A.B. (ex-nuptial children) was married in England to Ernest Edward C.-a member of the Forces. C. was discharged in Brisbane on 9 May 1917, and pensions at the maximum rate were awarded to the member and his wife.

Mrs C. in June 1917 made a claim for pensions in respect of her two children, but the claim was rejected on the grounds that not being the children of the soldier's wife by a former husband, they could not be regarded as the stepchildren of the soldier, and were therefore not members of the soldier's family within the meaning of the War Pensions Act. The case was resubmitted under the Australian Soldiers' Repatriation Act 1920, and the Deputy Commissioner of Pensions, London, was advised that subject to proof of adoption of the children by the soldier, pensions could be granted. Mrs C. produced as evidence a letter from the ex-soldier, which was accepted as satisfactory proof, and pensions were granted in respect of the two children as from 15 October 1920.

When reviewing this case subsequently, it was not considered that there was satisfactory evidence as to adoption of the children by the ex-member, and the pensions in respect of the children were cancelled in February 1922. The ex-member is at present residing in Queensland, whilst his wife lives in Scotland together with her two children. The evidence in this case seems to be rather conflicting as to whether the ex-member actually adopted the children or not. The Registrar of Pensions, Cairns, Queensland, as a result of an interview with ex-member advised as follows:

C. informed me that when he was married it was understood that he was to keep the two children together with their mother and he accepted the full responsibility for their future maintenance, although the father of the children was at the time paying for their maintenance.

As regards the adoption of the children by C. he states that the matter was never discussed and that he on no occasion expressed his willingness to adopt them.

Mrs C. has now appealed against the cancellation of her children's pensions, and in support of her appeal, writes as follows:

I am in receipt of your letter of 20th instant, the contents of which very much surprise me. When my husband Ernest Edward C. married me, he was perfectly well aware that I had two children, and he lived in my house along with them and myself following the time of our marriage, down to the time he left Scotland.

I have ascertained that when a man marries a woman with two pupil children he becomes liable for their maintenance and until they are able to support themselves after they have passed the period of pupillarity.

My husband was perfectly well aware of this, both previous and subsequent to my marriage, and I do not intend to allow him to evade his responsibilities. In proof of what 1 have stated I enclose herewith a letter written by my husband to my eldest child, which shows perfectly clearly that he had to maintain my children as well as myself and although he has deserted me and the children now, that will not avail him anything so far as liability is concerned. I shall be obliged by your taking the necessary steps to have the pensions payable for my son and daughter renewed without delay. Would you please let me know where to write to obtain my husband's address.

Mrs C. in her original 'Claim for War Pension' on behalf of the children stated that the 'father allows 2s 6d each per week for each of the children'. This allowance was continued to be paid notwithstanding her marriage to C.

The Commission would be glad of your advice as to-

1. Whether the husband is legally responsible for the maintenance of the illegitimate children of his wife by a person other than himself, and would those children be regarded in law as stepchildren?
2. Whether the Commonwealth is liable for the payment of pensions in respect of the two illegitimate children in this case.
3. Can these children be said to be adopted children seeing that C. only lived in his wife's house when on leave as a member of the A.I.F. and that he has never made a home for them, nor taken any steps to bring his wife or them to Australia since his discharge-17.5.17?

As the husband is resident and domiciled in Queensland, the law governing his responsibilities (if any) towards the illegitimate children of his wife is Queensland law. Under the circumstances stated in the Chairman's memorandum, the husband does not appear to be legally responsible for the maintenance of the children. The only provision of the Queensland law under which he might be responsible for their maintenance appears to be section 286 of the Queensland Criminal Code, which provides as follows:

It is the duty of every person who, as head of a family, has the charge of a child under the age of fourteen years, being a member of his household, to provide the necessaries of life for such child . . .

Further, I am of opinion that the children cannot be regarded as the stepchildren of the husband. Stepchildren are the children by a former marriage of the wife or husband. On the facts appearing in the file, I do not think they can be regarded as adopted children of C. A child can only be regarded as adopted when some person other than the person ordinarily entitled to its custody puts himself in loco parentis to the child. C. does not appear to have put himself in loco parentis to the children.

In my opinion, therefore, the three questions asked by the Chairman should be answered in the negative.

[Vol.18,p. 398]