Supreme Court (Adoption) Rules 2015

S.R. No. 102/2015

table of provisions

Rule Page

Rule Page

Order 1—Preliminary 1

1 Title and object 1

2 Authorising provisions 1

3 Commencement and revocation 1

Order 2—Adoption 2

4 Application of Rules 2

5 Definitions 2

6 Application to be by originating summons—Form 1 2

7 Summons and notice of identification to be filed—Form 2 3

8 Service 3

9 Affidavit in support of application—Form 3 4

10 Affidavit in support under section 69A of the Act 7

11 Affidavit in support under section 69B of the Act 8

12 By whom affidavits sworn 9

13 Documents to be served on guardian 10

14 Filing of affidavits 10

15 Summons to dispense with consent—Forms4 and 5 11

16 Non-disclosure of applicant's name 12

17 Appointment of day for hearing 12

18 Service of summons and appointment of hearing 13

19 Affidavit of service 13

20 Production of child on application 13

21 Application for order changing guardianship—Forms6 and7 14

22 Service of copy of Rules as to duty of guardian 14

23 Investigations and reports 14

24 Information to be confidential 20

25 Presence of parties 20

26 As to previous unsuccessful applications 20

27 Where Secretary or principal officer is guardian 21

28 Notice of adjournment 21

29 Interim order—Form 8 21

30 Adoption order and certificate of adoption—Forms9 and10 21

31 Application to discharge adoption order—Form 11 21

32 Application to vary condition on adoption of child—Forms 12 and13 22

33 Application for guardianship of non-citizen child—Forms 14 and15 22

34 Application to restrict access of natural parent—Form16 23

35 Application for declaration as to foreign adoption—Forms 17 and18 23

36 Application under section 69H—Form 19 24

37 Application under section 69I—Forms 20 and 21 24

38 Application under section 69W—Forms 22 and 23 24

39 Application for information—Form 24 25

40 Application for a copy of birth certificate 25

41 Application for authority to publish identity of parties—Form25 25

42 Transfer of application from County Court to Supreme Court 25

43 Documents to be confidential 26

44 Form of documents 26

45 Enlargement or abridgment of time 26

46 Court may grant access to information 27

Form 1—Summons for Adoption Order 28

Form 2—Notice of identification 29

Form 3—Affidavit of applicants in support of application 30

Form 4—Summons to dispense with consent required under section33 of the Adoption Act1984 33

Form 5—Order dispensing with consent 34

Form 6—Summons to change guardianship of child 35

Form 7—Order changing guardianship of child 36

Form 8—Interim Order 37

Form 9—Adoption Order 39

Form 10—Certificate of adoption 40

Form 11—Application to discharge Adoption Order under section19(1) of the Adoption Act 1984 41

Form 12—Summons to vary Adoption Order to make Order subjectto condition 42

Form 13—Summons to vary or revoke condition attached to Adoption Order under section 59 of the Adoption Act1984 43

Form 14—Summons to appoint guardian of noncitizen child 44

Form 15—Order for guardianship of non-citizen child 45

Form 16—Summons to restrict access of a parent to a child 46

Form 17—Summons for declaration of recognition of foreign adoption 47

Form 18—Declaration of recognition of foreign adoption 48

Form 19—Summons for terminating legal relationship 49

Form 20—Summons for declaration under section 69I of the Adoption Act 1984 50

Form 21—Declaration under section 69I of the Adoption Act 1984 51

Form 22—Summons for declaration under section 69W of the Adoption Act 1984 52

Form 23—Declaration under section 69W of the Adoption Act 1984 53

Form 24—Application for information 54

Form 25—Application for authority to publish matter relating to identity of parties 55

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Endnotes 57

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Order 2—Adoption

Supreme Court (Adoption) Rules 2015

S.R. No. 102/2015

statutory rules 2015

S.R. No. 102/2015

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Order 2—Adoption

Supreme Court (Adoption) Rules 2015

S.R. No. 102/2015

Supreme Court Act 1986
Adoption Act 1984

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Order 2—Adoption

Supreme Court (Adoption) Rules 2015

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Supreme Court (Adoption) Rules 2015

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Order 2—Adoption

Supreme Court (Adoption) Rules 2015

S.R. No. 102/2015

The Judges of the Supreme Court make the following Rules:

Order 1—Preliminary

1 Title and object

(1) These Rules constitute Chapter IV of the Rules of the Supreme Court and are entitled the Supreme Court (Adoption) Rules 2015.

(2) The object of these Rules is to re-make the Rules that constitute Chapter IV of the Rules of the Supreme Court regulating procedures in the Court in relation to adoption.

2 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, section 6(2) of the Adoption Act 1984 and all other enabling powers.

3 Commencement and revocation

(1) These Rules come into operation on 26 October 2015.

(2) The Supreme Court (Adoption) Rules 2005[1] are revoked.

Order 2—Adoption

4 Application of Rules

Subject to this Order and so far as in each case they are applicable—

(a) Chapter I of the Rules of the Supreme Court for the time being in force and the general practice of the Supreme Court apply to proceedings in the Supreme Court under the Act; and

(b) the County Court Rules for the time being in force and the general practice of the County Court apply to proceedings in the County Court under the Act.

5 Definitions

In this Order—

applicant means the person or persons applying for an order under the Act;

Court means the Court to which an application under the Act is made;

Judge means a Judge of the court to which an application under the Act is made, whether the Supreme Court or the County Court;

Prothonotary means Prothonotary of the Supreme Court;

the Act means the Adoption Act 1984.

6 Application to be by originating summons—Form 1

(1) An application for an adoption order shall be made by originating summons in Form 1.

(2) The proposed adoptive parent or parents shall be the applicant or applicants and the Judge may direct any other person or any institution to be made a respondent.

7 Summons and notice of identification to be filed—Form 2

(1) The originating summons shall be filed in the Court immediately it is issued.

(2) A notice of identification of the child in Form2 shall be filed with the summons.

8 Service

(1) Unless on application the Judge directs otherwise, every originating summons required by this Order to be served shall be served personally.

(2) The respondent, within 21 days of being served with an originating summons, shall file in the Office of the Prothonotary or the Office of the Registrar of the County Court (as the case requires) a notice specifying an address within Victoria as the respondent's address for service where summonses, notices and other documents may be left for the respondent.

(3) Unless on application the Judge directs otherwise, every summons (other than an originating summons), notice or other document required by this Order to be served may be served—

(a) personally; or

(b) by being posted in a prepaid registered envelope addressed—

(i) to the person or institution to be served at the address for service of the person or institution; or

(ii) if the person or institution has not filed a notice specifying an address for service pursuant to paragraph (2), at the last known address of the person or institution.

(4) The service of every summons, notice or other document not served by the Court shall be verified by affidavit, unless the Judge directs otherwise.

(5) If the person to be served is a minor, service in accordance with this Rule shall be sufficient unless the Judge orders otherwise.

9 Affidavit in support of application—Form 3

An application for an adoption order shall be supported by evidence on affidavit in Form 3 which shall disclose—

(a) the age and sex of the applicants and of the child and their relationships (if any) to each other;

(b) the identity of the child so far as it is known to the applicants;

(c) the residence or domicile in Victoria of the applicants;

(d) the whereabouts of the child;

(e) particulars of any person with whom the child resides or who has the care and custody of the child;

(f) whether any and what proceedings have been brought or orders made by any court concerning the guardianship, care, custody or maintenance of, or access to the child, and shall have attached to it copies or certified extracts of any such orders, and if no such proceedings have been brought, a statement to that effect;

(g) where the applicants are married to each other, particulars of their marriage, including—

(i) the date of the marriage;

(ii) the name and address of the church or other place of the marriage ceremony;

(iii) if known, the name of the minister or other authorised person who performed the marriage ceremony;

(h) where the applicants are Aborigines, whether their relationship is recognized as a traditional marriage by an Aboriginal community or Aboriginal group to which they belong and whether it has been so recognized for two years or more;

(i) where the applicants are living together in a de facto relationship, whether they have been so living for two years or more and whether either is married;

(j) where the applicants have been living with each other in a combination of the relationships referred to in paragraphs (g), (h) and (i), particulars of the duration of each such relationship;

(k) where an applicant is married and the spouse is not an applicant, whether the applicant is living with the spouse and, if so, whether the spouse consents to the adoption order;

(l) where an applicant is living in a de facto relationship and the de facto spouse is not an applicant, whether the de facto spouse consents to the adoption order and whether the applicant or the de facto spouse is married;

(m) whether an applicant or the spouse of an applicant or the de facto spouse of an applicant is a relative of the child and, if so, how the applicant or spouse is related to the child;

(n) whether an applicant is a man who, under section 33(3) of the Act, is an appropriate person to give consent to the adoption of the child;

(o) where an applicant or the de facto spouse of an applicant has previously been married, particulars of each such marriage and of its termination (the affidavit to have attached to it a copy of any relevant certificate of death or decree absolute);

(p) the assets and income of the applicants;

(q) whether any applicant has any children or adopted children and if so the respective sexes and ages of those children;

(r) whether the child is a non-citizen child;

(s) where the child is a non-citizen child—

(i) whether the child has been in the care of the applicants for the preceding 12months;

(ii) whether the applicants were approved by the Secretary or by an authorized agency under section 51(1)(a) of the Act as suitable to adopt a non-citizen child before the child came into or was placed in the care of the applicants; and

(iii) whether the Secretary or an authorized agency has supervised the welfare and interests of the child during any period while the child was in the care of the applicants;

(t) whether, at any time before or after the birth of the child, any applicant or any other person to the best of any applicant's knowledge, information and belief has made, given or received or agreed to make, give or receive any, and if so what, payment or reward for or in consideration of—

(i) the adoption or proposed adoption of the child;

(ii) the giving of consent or the signing of an instrument of consent to the adoption of the child;

(iii) the transfer of the custody, care or control of the child with a view to the adoption of the child; or

(iv) the making of arrangements with a view to the adoption of the child;

(u) whether any and what insurance has been effected on the life of the child or for the benefit of the child;

(v) whether the applicant has made any previous application for the adoption of the child and whether any adoption order or other order under the Act or under the Children, Youth and Families Act 2005 or any corresponding previous enactment has previously been made in respect of the child; and

(w) any other matters necessary to support the application or to define any issues.

10 Affidavit in support under section 69A of the Act

(1) In addition to complying with Rule 9, an affidavit in support of an application under section 69A of the Act must comply with this Rule.

(2) The affidavit shall state—

(a) whether the deponent is habitually resident in a Convention country; and

(b) whether the child to be adopted is habitually resident in Victoria.

(3) The affidavit shall state the belief of the deponent, and the grounds for such belief, as to—

(a) whether the child to be adopted is prevented from leaving Australia—