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Contents (2000 - 75)
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Adoption Act 2000 No 75
Current version for 27 June 2017 to date (accessed 21 September 2017 at 00:41)
Chapter 6
Chapter 6 Proceedings
Introduction.
 This Chapter specifies the procedures that are to be followed in proceedings before the Supreme Court under the Act.
118   Parties
(cf AC Act s 23)
(1)  The Court may permit such persons as the Court thinks fit to appear in or be joined as parties to the proceedings for an adoption order.
(2)  The Court must, on application by a person who is the father of a child who has not:
(a)  given his consent to the adoption of the child, and
(b)  been given a notice referred to in section 56 (Birth father to be given opportunity to consent),
permit the person to appear in, or join the person as a party to, the proceedings for an adoption order in relation to the child for the purpose of opposing the application for the order.
Note.
 The Court may require the attendance of any party. See section 121.
119   Hearings to be in camera
(cf AC Act s 64)
(1)  Any proceedings heard by the Court under this Act or the regulations must be heard in closed court.
(2)  Despite subsection (1), the Court may, if it considers it to be appropriate, permit persons who are not parties to the proceedings or their Australian legal practitioners or representatives to be present during the hearing of the proceedings.
120   Secretary may appear at hearings
(cf AC Act s 68)
The Secretary may appear at the hearing of any application under this Act, and may address the Court, and call, examine and cross-examine witnesses.
121   Court may require attendance
(1)  The Court may require any party to the proceedings for an adoption order to attend personally before the Court.
(2)  The Court may require the party to attend at such time during the hearing of the application as the Court directs.
122   Legal representation
(1)  In this section:
child means a person (including a birth parent) who is less than 18 years of age.
(2)  The Court:
(a)  must appoint an Australian legal practitioner to represent a child if a guardian ad litem is appointed for the child, and
(b)  may (whether or not a guardian ad litem is appointed) appoint an Australian legal practitioner to represent a child if it appears to the Court that the child needs to be represented in any proceedings before it under this Act.
(3)  Without limiting the role of an Australian legal practitioner representing a child, the role of the Australian legal practitioner representing a child in proceedings includes:
(a)  ensuring that the views of the child are placed before the Court, and
(b)  ensuring that all relevant evidence is adduced and, where necessary, tested, and
(c)  acting on the instructions of the child or, if the child is incapable of giving instructions:
(i)  acting as a separate representative for the child, or
(ii)  acting on the instructions of the guardian ad litem.
(4)  There is a rebuttable presumption that a child who is not less than 10 years of age is capable of giving proper instructions to an Australian legal practitioner representing the child. This presumption is not rebutted only because a child has a disability.
(5)  The Court may, on the application of an Australian legal practitioner representing a child, make a declaration:
(a)  that a child who is less than 10 years of age is capable of giving instructions, or
(b)  that a child who is not less than 10 years of age is not capable of giving instructions and that the legal representative is to act as a separate representative of the child.
(6)  If:
(a)  a child is less than 10 years of age, or
(b)  a child who is not less than 10 years of age is incapable of giving proper instructions to the Australian legal practitioner representing the child,
the Australian legal practitioner representing the child is to act as a separate representative.
(7)  The role of a separate representative includes the following:
(a)  to interview the child after becoming the separate representative,
(b)  to explain to the child the role of a separate representative,
(c)  to present direct evidence to the Court about the child and matters relevant to his or her safety, welfare and well-being,
(d)  to present evidence of the child’s wishes (and in doing so the separate representative is not bound by the child’s wishes),
(e)  to cross-examine the parties and their witnesses,
(f)  to make applications and submissions to the Court for orders (whether final or interim) considered appropriate in the interests of the child,
(g)  to lodge an appeal against an order of the Court if considered appropriate.
(8)  An Australian legal practitioner representing, or acting as separate representative of, a child who has not been appointed by the Court may appear only with its leave.
(9)  The Court may withdraw its leave at any time if the child informs the Court that he or she does not wish to be represented by the Australian legal practitioner.
123   Guardian ad litem—child
(1)  The Court may appoint a guardian ad litem for a child if it is of the opinion that:
(a)  there are special circumstances that warrant the appointment, and
(b)  the child will benefit from the appointment.
(2)  Special circumstances that warrant the appointment of a guardian ad litem may include that the child has special needs because of age, disability or illness.
(3)  The functions of a guardian ad litem of a child are:
(a)  to safeguard and represent the interests of the child, and
(b)  to instruct the Australian legal practitioner representing the child.
(4)  An Australian legal practitioner representing a child for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.
124   Guardian ad litem and amicus curiae—birth parents of child
(1)  The Court may:
(a)  appoint a guardian ad litem for either or both of the birth parents or adoptive parents of a child, or
(b)  request the Australian legal practitioner representing a parent or the parents of a child to act as amicus curiae,
if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, Australian legal practitioner.
(2)  Circumstances that warrant the appointment of a guardian ad litem or a request for an Australian legal practitioner to act as amicus curiae may include that the parent of a child has an intellectual disability or is mentally ill.
(3)  If the Court requires the attendance of a birth mother under section 121, the Court must appoint a guardian ad litem for the birth mother if she is less than 18 years of age.
(4)  The functions of a guardian ad litem of a parent of a child are:
(a)  to safeguard and represent the interests of the parent, and
(b)  to instruct the Australian legal practitioner representing the parent.
(5)  An Australian legal practitioner representing a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.
Note.
 Amicus curiae is defined in the Macquarie Dictionary (3rd ed) as a person not a party to the litigation who volunteers or is invited by the court to give advice to the court upon some matter before it.
124A   Guardian ad litem—exclusion of personal liability
(1)  Anything done or omitted to be done by a member of the Guardian Ad Litem Panel who is appointed by the Court as a guardian ad litem does not subject the member personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purposes of exercising his or her functions as a guardian ad litem under this Act.
(2)  However, any such liability attaches instead to the Crown.
(3)  In this section:
Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Justice.
125   Support persons
(1)  A participant in proceedings under this Act before the Court may, with the leave of the Court, be accompanied by a support person.
(2)  The leave of the Court must be granted unless:
(a)  the support person is a witness in the proceedings, or
(b)  the Court, having regard to the wishes of the child with respect to whom the proceedings are brought, is of the opinion that leave should not be granted, or
(c)  there is some other substantial reason to deny the application.
(3)  The Court may withdraw its leave at any time if a support person does not comply with any directions given to the support person by the Court.
(4)  A support person cannot give instructions on behalf of the participant or act as an interpreter for the participant in the proceedings.
126   Matters admissible in evidence
(cf AC Act s 65)
Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.
127   Wishes of child
(cf AC Act ss 33, 38, AC Reg cl 28)
(1)  In proceedings before it, the Court is to take into account any wishes and feelings of the child (considered in the light of the child’s age and understanding) that are expressed by the child.
Note.
 On participation generally of the child in decisions about his or her adoption see section 9.
(2)  The Court may direct that a child be provided with such counselling as the Court considers appropriate.
128   How wishes of a child are expressed
The Court may inform itself of wishes expressed by the child:
(a)  by having regard to anything contained in a report made to the Court by the Secretary or the appropriate principal officer, or
(b)  subject to rules of court, by such other means as the Court considers appropriate.
129   Children not to be required to express wishes
Nothing in this Act requires the Court or any person to require a child to express his or her wishes in relation to any matter.