Supreme Court (Chapter IV Amendment No. 3) Rules 2001

i Supreme Court (Chapter IV Amendment No. 3) Rules 2001 S.R. No. 112/2001 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. New Rules 6A and 6B inserted 1 6A. Affidavit in support under section 69A 1 6B. Affidavit in support under section 69B 2 6. Conditions on adoption of child 3 7. New Rules 29A to 29C inserted 4 29A. Application under section 69H 4 29B. Application under section 69I 4 29C. Application under section 69W 5 8. New Form 10B inserted 5 Form 10B—Form of summons to vary adoption order to make order subject to condition 5 9. New Forms 16A to 16E inserted 6 Form 16A—Form of summons for terminating legal relationship under section 69H 6 Form 16B—Form of summons for declaration under section 69I 7 Form 16C—Form of declaration under section 69I 8 Form 16D—Form of summons for declaration under section 69W 9 Form 16E—Form of declaration under section 69W 10 ═══════════════ ENDNOTES 12 -- 1 of 13 -- 1 STATUTORY RULES 2001 S.R. No. 112/2001 Supreme Court Act 1986 Adoption Act 1984 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to amend the Principal Rules in consequence of the enactment of the Adoption (Amendment) Act 2000. 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 These Rules come into operation on 1 January 2002. 4. Principal Rules In these Rules, the Adoption Rules 1996 1 are called the Principal Rules. 5. New Rules 6A and 6B inserted After Rule 6 of the Principal Rules insert— "6A. Affidavit in support under section 69A (1) In addition to complying with Rule 6, an affidavit in support of an application under -- 2 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 2 section 69A of the Act shall comply with this Rule. (2) The affidavit shall state— (a) whether the deponent is habitually resident in a Convention country2 ; 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— (i) under a law of the Commonwealth, a State or a Territory; or (ii) because of an order of a court of the Commonwealth, a State or a Territory; (b) whether the arrangements for the adoption of the child are in accordance with the requirements of the Hague Convention3 ; (c) whether the Central Authority4 of the Convention country has agreed to the adoption of the child; and (d) whether the State Central Authority5 has agreed to the adoption of the child. 6B. Affidavit in support under section 69B (1) In addition to complying with Rule 6, an affidavit in support of an application under section 69B of the Act shall comply with this Rule. (2) The affidavit shall state— r. 5 -- 3 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 3 (a) whether the deponent is habitually resident in Victoria; and (b) whether the child to be adopted is habitually resident in a Convention country6 . (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 residing permanently in Australia— (i) under a law of the Commonwealth, a State or a Territory; or (ii) because of an order of a court of the Commonwealth, a State or a Territory; (b) whether the arrangements for the adoption of the child are in accordance with the requirements of the Hague Convention7 ; (c) whether the Central Authority8 of the Convention country has agreed to the adoption of the child; and (d) whether the State Central Authority9 has agreed to the adoption of the child.". 6. Conditions on adoption of child (1) In Rule 26 of the Principal Rules, for sub-rule (1) substitute— "(1) An application under section 60(1) of the Act for the variation of an adoption order so that the order is subject to a condition referred to in section 59 or 59A of the Act r. 5 -- 4 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 4 shall be made by summons in Form 10B of the Schedule. (1A) An application under section 60(2) of the Act for the variation or revocation of a condition to which an adoption order was made subject under section 59 or 59A of the Act shall be made by summons in Form 11 of the Schedule.". (2) In Rule 26(2) of the Principal Rules, for "sub-rule (1)" substitute "this rule". (3) In Rule 26(3) of the Principal Rules— (a) for "sub-rule (1)" substitute "this rule"; (b) for "condition" substitute "adoption order or condition (as the case requires)". 7. New Rules 29A to 29C inserted After Rule 29 of the Principal Rules insert— "29A. Application under section 69H (1) An application under section 69H of the Act shall be made by summons in Form 16A of the Schedule. (2) A summons under sub-rule (1) shall be supported by affidavit. 29B. Application under section 69I (1) An application under section 69I of the Act shall be made by summons in Form 16B of the Schedule. (2) A summons under sub-rule (1) shall be supported by affidavit. (3) A summons under sub-rule (1) and any supporting affidavit shall be served on such person or persons and in such manner as the Court directs. r. 6 -- 5 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 5 (4) An order making a declaration under section 69I of the Act shall be in Form 16C of the Schedule. 29C. Application under section 69W (1) An application under section 69W of the Act shall be made by summons in Form 16D of the Schedule. (2) A summons under sub-rule (1) shall be supported by affidavit. (3) A summons under sub-rule (1) and any supporting affidavit shall be served on such person or persons and in such manner as the Court directs. (4) An order making a declaration under section 69W of the Act shall be in Form 16E of the Schedule.". 8. New Form 10B inserted After Form 10A of the Schedule to the Principal Rules insert— "FORM 10B FORM OF SUMMONS TO VARY ADOPTION ORDER TO MAKE ORDER SUBJECT TO CONDITION In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) r. 7 r. 8 -- 6 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 6 Applicants Let all parties concerned attend before the Judge of the *Supreme/County Court at Court No. (insert) at , on the day of at am/pm, on the hearing of an application under section 60 of the Adoption Act 1984 for an order that the adoption order made by the *Supreme/County Court on (insert date) for the adoption of (name of adopted child) be varied to make it subject to the following condition(s)— (insert details of the relevant condition, being a condition under section 59 or 59A of the Adoption Act 1984) Dated: *Prothonotary/Registrar *delete if inapplicable". 9. New Forms 16A to 16E inserted After Form 16 of the Schedule to the Principal Rules insert— "FORM 16A FORM OF SUMMONS FOR TERMINATING LEGAL RELATIONSHIP UNDER SECTION 69H In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) Applicants r. 9 -- 7 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 7 Let all parties concerned attend before the Judge of the *Supreme/County Court at Court No. (insert) at , on the day of at am/pm, on the hearing of an application for an order under section 69H of the Adoption Act 1984 terminating the legal relationship between (name of adopted child) and (name(s) of persons who, immediately before the adoption, were the child's parents). Dated: *Prothonotary/Registrar *delete if inapplicable _______________ FORM 16B FORM OF SUMMONS FOR DECLARATION UNDER SECTION 69I In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) Applicant Let all parties concerned attend before the Judge of the *Supreme/County Court at Court No. (insert) at , on the day of at am/pm, on the hearing of an application under section 69I of the Adoption Act 1984 for an order declaring that— ∗ the adoption of the above-named child, recognised under section 69D or 69E r. 9 -- 8 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 8 ∗ the decision made in accordance with article 27 of the Hague Convention terminating the pre-existing legal parent-child relationship is not recognised on the ground that it is manifestly contrary to public policy. Dated: *Prothonotary/Registrar *delete if inapplicable _______________ FORM 16C FORM OF DECLARATION UNDER SECTION 69I In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) Applicant Upon application made this day and upon reading the summons herein filed on (insert date) , the affidavit of (applicant's name) and the affidavits of (names of other deponents) filed herein, THE COURT, being satisfied that— (insert details of the relevant adoption recognised under section 69D or 69E or decision made in accordance with article 27 of the Hague Convention) is manifestly contrary to public policy, DECLARES THAT the *adoption/decision is not recognised. r. 9 -- 9 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 9 Dated: Judge *delete if inapplicable Note: Under section 69I(3) of the Adoption Act 1984, if a court declares that an adoption recognised under section 69D or 69E of the Act, or a adoption or decision made in accordance with article 27 of the Hague Convention is not recognised, the adoption or decision has no effect in Victoria. _______________ FORM 16D FORM OF SUMMONS FOR DECLARATION UNDER SECTION 69W In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) Applicant Let all parties concerned attend before the Judge of the *Supreme /County Court at Court No. (insert) at , on the day of at am/pm, on the hearing of an application under section 69W of the Adoption Act 1984 for an order declaring that the adoption of the above- named child, which is otherwise recognised under section 69U of the Act, is not recognised on the ground that it is contrary to public policy. Dated: *Prothonotary/Registrar *delete if inapplicable r. 9 -- 10 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 10 _______________ FORM 16E FORM OF DECLARATION UNDER SECTION 69W In the *Supreme Court/ County Court at In the matter of the Adoption Act 1984 and In the matter of the *Supreme Court Act 1986/ County Court Act 1958 and In the matter of (name of child) Applicant Upon application made this day and upon reading the summons herein filed on (insert date) , the affidavit of (applicant's name) and the affidavits of (names of other deponents) filed herein, THE COURT, being satisfied that— (insert details of relevant adoption recognised under section 69U of the Act) is manifestly contrary to public policy, DECLARES THAT the adoption is not recognised. Dated: Judge *delete if inapplicable r. 9 -- 11 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 11 Note: Under section 69W(3) of the Adoption Act 1984, if a court declares that an adoption recognised under section 69U of the Act is not recognised, the adoption has no effect in Victoria.". Dated:25 October 2001 J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A. W. F. ORMISTON, J.A. JOHN D. PHILLIPS, J.A. STEPHEN CHARLES, J.A. F. H. CALLAWAY, J.A. ALEX CHERNOV, J.A. BERNARD G. TEAGUE, J. P. D. CUMMINS, J. ALLAN W. McDONALD, J. DAVID ASHLEY, J. JOHN COLDREY, J. DAVID BYRNE, J. D. L. HARPER, J. G. M. EAMES, J. ROSEMARY BALMFORD, J. E. W. GILLARD, J. M. L. WARREN, J. TONY PAGONE, J. ═══════════════ r. 9 -- 12 of 13 -- S.R. No. 112/2001 Supreme Court (Chapter IV Amendment No. 3) Rules 2001 12 ENDNOTES 1 Rule 4: S.R. No. 168/1995 as amended by S.R. Nos 82/1997 and 50/1998. 2 Convention country is defined in section 4(1) of the Adoption Act 1984. 3 The requirements for intercountry adoptions are set out in articles 4 and 5 of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993 (the "Hague Convention"). The Hague Convention is set out in Schedule 1 to the Adoption Act 1984. 4 Central Authority is defined in section 4(1) of the Adoption Act 1984. 5 State Central Authority is defined in section 4(1) of the Adoption Act 1984. 6 See note 2. 7 See note 3. 8 See note 4. 9 See note 5. Endnotes -- 13 of 13 --