Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 5 August 2020 at 15:05)
Part 56
Part 56 Matters arising under the Adoption Act 2000
56.1   Interpretation
(cf SCR Part 73, rule 1)
(1)  Words and expressions used in this Part have the same meanings as they have in the Adoption Act 2000.
(2)  In this Part, a reference to an originating process includes a reference to a notice of motion referred to in rule 56.2(1).
56.2   Commencement of proceedings
(cf SCR Part 73, rule 4)
(1)  Once proceedings (the original proceedings) have been commenced under the Adoption Act 2000 in relation to any person, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.
Note.
 Pursuant to rule 6.4, the original proceedings must be commenced by summons.
(2)  Applications for adoption orders for 2 or more children may be joined in one application if the same person is the proposed adoptive parent, or the same persons are the proposed adoptive parents, of all the children.
(3)  The originating process is not to state a return day.
(4)  Nothing in subrule (3) affects any requirement under rule 56.5 to state an appointment for a preliminary hearing.
(5)  The Supreme Court may of its own motion appoint a day for the hearing of the proceedings.
(6)  If the Supreme Court appoints a day for hearing the proceedings, it must ensure that the parties are given notice of the appointment at least 5 days before the day appointed.
(7)  If the Supreme Court makes an appointment for hearing under this rule, it may give directions for service of notice of the appointment or for otherwise notifying the parties of the appointment.
56.3   Duty to make full and frank disclosure
(cf SCR Part 73, rule 3)
Each party to proceedings in the Supreme Court under the Adoption Act 2000 has a duty to the Court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order.
56.4   How application for adoption order is to be dealt with
(cf SCR Part 73, rule 6)
(1)  Unless the Supreme Court otherwise orders, an application for an adoption order is to be dealt with and determined by the Court in the absence of the public and without any attendance by or on behalf of the plaintiff.
(2)  If it is not appropriate for an application for an adoption order to be dealt with without the attendance by and on behalf of the plaintiff, the plaintiff must, in the originating process, apply for a preliminary hearing and for directions relating to the hearing.
56.5   Preliminary hearing
(cf SCR Part 73, rule 8)
(1)  The plaintiff may, in the originating process, apply for a preliminary hearing and, if the plaintiff does so, the originating process must contain an appointment for a preliminary hearing.
(2)  A party may obtain a preliminary hearing by filing a notice of motion.
(3)  The party applying for a preliminary hearing must state shortly in the originating process or notice of motion the terms, or the effect, of any order or direction for which the party will apply at the preliminary hearing.
(4)  A person other than a party may apply for a preliminary hearing by filing a notice of motion that seeks the approval of the Supreme Court as referred to in the regulations under the Adoption Act 2000.
(5)  The Supreme Court may grant such approval on perusal of the notice of motion and the evidence filed in support of the notice of motion before hearing the notice of motion and without affording any person other than the applicant an opportunity to be heard.
56.6   Applications appropriate for preliminary hearing
(cf SCR Part 73, rule 10)
(1)  Applications appropriate for a preliminary hearing are applications for any order or direction that the Supreme Court should determine before it determines the application for an adoption order or other principal application.
(2)  Applications appropriate for a preliminary hearing include applications relating to the following—
(a)  joinder of a party in accordance with section 118 of the Adoption Act 2000, including joinder of a non-consenting father,
(b)  giving notice of proceedings to any person,
(c)  appointing a guardian ad litem in accordance with section 123 of the Adoption Act 2000 or guardian ad litem or amicus curiae in accordance with section 124 of the Adoption Act 2000,
(d)  a consent dispense order,
(e)  the placement for adoption of an Aboriginal or Torres Strait Islander child, if a preliminary hearing is required by section 80(2) of the Adoption Act 2000,
(f)  the adoption of an Aboriginal or Torres Strait Islander child,
(g)  the registration of an adoption plan,
(h)  dispensing with notice under section 88(4) of the Adoption Act 2000,
(i)  the revocation of a consent dispense order.
56.7   Filing of report in accordance with section 91 of the Adoption Act 2000
(cf SCR Part 73, rule 12)
A plaintiff applying for an adoption order in relation to a child under 18 years of age must file a report under section 91 of the Adoption Act 2000
(a)  except as provided by paragraph (b), when filing the originating process, or
(b)  if there is a preliminary hearing, before the preliminary hearing.
56.8   Evidence in support of application for adoption order
(cf SCR Part 73, rule 13)
Evidence in support of an application for an adoption order must include evidence of the following—
(a)  the matters specified in section 90 of the Adoption Act 2000,
(b)  the facts and circumstances that give the Supreme Court jurisdiction in accordance with section 23, 106 or 107 of the Adoption Act 2000,
(c)  the date and place of the child’s birth,
(d)  the names of the child, including all names that the child has or has had, and the facts relating to any change of the child’s name,
(e)  the names that it is proposed the child should have on the making of the adoption order, showing separately—
(i)  the proposed given name or names and the proposed surname, and
(ii)  all facts relating to any consent required under section 101(4) of the Adoption Act 2000, and
(iii)  any relevant special reasons under section 101(5) of the Adoption Act 2000,
(f)  the name, place of residence and occupation of each person with whom the child resides or who has the child in that person’s care or custody,
(g)  the name, place of residence, age and occupation of each proposed adoptive parent,
(h)  if it is proposed that there be one adoptive parent, the facts and circumstances that show that an order may be made having regard to the provisions of section 27 of the Adoption Act 2000,
(i)  if it is proposed that a couple be the adoptive parents, the facts and circumstances that show that an order may be made having regard to the provisions of section 28 of the Adoption Act 2000,
(j)  the following matters relating to consents under the Adoption Act 2000 or the regulations under that Act—
(i)  the facts and circumstances relating to which persons’ consents are necessary,
(ii)  the provisions of the Adoption Act 2000 or regulations that make the consents necessary,
(iii)  consents that have been obtained,
(iv)  notice or advice to the birth father under section 56 of the Adoption Act 2000,
(v)  consents for which there is a consent dispense order,
(vi)  consents for which it is contended that the court should make a consent dispense order,
(k)  whether there is, or has been, an adoption plan, the facts and circumstances relating to the making of any adoption plan, whether the adoption plan has been registered and the terms of any adoption plan that remains in effect,
(l)  the opinions, and reasons for those opinions, of persons who are not related to the proposed adoptive parent or parents relating to the adoptive parent’s or parents’ character and suitability to be an adoptive parent or adoptive parents,
(m)  the facts and circumstances relating to the principles stated in section 8(1) of the Adoption Act 2000 and the matters to which the Court is to have regard in accordance with section 8(2) of the Adoption Act 2000,
(n)  the facts and circumstances relied on to show that the best interests of the child will be promoted by the adoption,
(o)  the facts and circumstances relied on to show that the wishes and feelings of the child have been ascertained and that due consideration has been given to those wishes and feelings,
(p)  whether there have been any proceedings relating to the interests, welfare or adoption of the child under the law of New South Wales or of the Commonwealth or any other place, whether any orders relating to the interests, welfare or adoption of the child have been made in any such proceedings, the terms of those orders and whether they remain in effect,
(q)  whether the child is, or has ever been, an immigrant and whether the Minister administering the Immigration (Guardianship of Children) Act 1946 of the Commonwealth has consented to the making of the application for adoption,
(r)  whether the child is a non-citizen child, showing whether the child is a non-citizen child from a Convention country or from another country outside Australia,
(s)  whether a proposed adoptive parent is a step-parent or relative of the child,
(t)  if a proposed adoptive parent is a step-parent of the child, whether leave of the Family Court of Australia has been obtained under section 60G of the Family Law Act 1975 of the Commonwealth,
(u)  whether any notice has been given to persons notice to whom is referred to in section 88 of the Adoption Act 2000 (which relates, among other persons, to persons whose consent is required and has not been given and has not been dispensed with).
56.9   Judicial notice of instrument of consent
(cf SCR Part 73, rule 14)
The Supreme Court may take notice, without verification, of an instrument of consent—
(a)  that appears on its face to have been given in accordance with section 61 of the Adoption Act 2000, and
(b)  that appears on its face to have been witnessed in accordance with section 62 of the Adoption Act 2000, and
(c)  that is accompanied by statements that on their face appear to have been made in accordance with sections 61 and 62 of the Adoption Act 2000.
56.10   Notice to be given to Secretary
(cf SCR Part 73, rule 15)
(1)  Notice must be given to the Secretary of any application for the discharge of an adoption order, declaration of validity, declaration that an adoption is not recognised or an order terminating a legal relationship.
(2)  The Supreme Court must not determine any application referred to in subrule (1) unless the Secretary has had a reasonable opportunity to become a party to the proceedings.
(3)  Despite subrule (2), the Supreme Court may determine an application referred to in subrule (1) without the Secretary having a reasonable opportunity to become a party to the proceedings if the Court considers it necessary in the circumstances.
56.11   Proper officer of the Court
(cf SCR Part 73, rule 16)
For the purposes of section 143(3) of the Adoption Act 2000, any registrar of the Supreme Court is a proper officer of the Court.
56.12   Access to Court records
(cf SCR Part 73, rule 17)
(1)  This rule applies to any application under section 143(2) of the Adoption Act 2000 for the supply of information from records of proceedings in the Court.
(2)  The Supreme Court may deal with the application informally by correspondence or on the personal attendance of the applicant without conducting a formal hearing.
(3)  The applicant must fulfil such reasonable requirements as may be made by the Supreme Court as to—
(a)  the verification of facts on which the application is based, and
(b)  identification of the proceedings in the Supreme Court to which the application relates, and
(c)  giving notice to any person, and
(d)  compliance with the requirements of the Adoption Act 2000 and the regulations under that Act, and
(e)  any other matter.
56.13   Registration of adoption plans
(1)  An adoption plan is registered for the purposes of section 50 of the Adoption Act 2000 when the Supreme Court files the plan following the making of an order that it be registered.
(2)  An originating process in proceedings for an adoption order may include an application for an order that an adoption plan be registered.
(3)  Evidence in support of an application for an order that an adoption plan be registered must include (to the extent that the evidence in support of the application for an adoption order does not already do so)—
(a)  a verified copy of the executed adoption plan, and
(b)  the facts, matters and circumstances relied on to show that the plan does not contravene the adoption principles, and
(c)  the statement on affidavit of each party to the adoption that the party understands the provisions of the plan and has freely entered into it, and
(d)  the facts, matters and circumstances relied on to show that the provisions of the plan are in the child’s best interests and proper in the circumstances.
56.14   Review of adoption plans
(1)  An application under section 51 of the Adoption Act 2000 for a review of an adoption plan is to be made by notice of motion in the proceedings in which the relevant adoption order was made.
(2)  Evidence in support of an application for a review of an adoption plan must include—
(a)  a verified copy of the executed adoption plan (unless it has previously been registered), and
(b)  the proposed changes to the adoption plan, and
(c)  the grounds on which the application is made, and
(d)  the facts, matters and circumstances relied on to show that it is in the best interests of the child and proper in the circumstances to change the adoption plan.
(3)  Unless the Supreme Court orders otherwise, the notice of motion must be served on—
(a)  each party to the adoption who has agreed to the adoption plan, and
(b)  any other person (including a non-consenting birth parent who has not agreed to the adoption plan) who has a sufficient interest in the adoption plan.