Adoption of Children Rules (Cth)

STATUTORY RULES

1970 No. 207

 

RULES UNDER THE NORTHERN TERRITORY SUPREME COURT ACT 1961-1969.*

I, RICHARD ARTHUR BLACKBURN, the senior Judge of the Supreme Court of the Northern Territory of Australia, in pursuance of the powers conferred on me by the Northern Territory Supreme Court Act 1961-1969, hereby make the following Rules of Court.

Dated this fourteenth day of December, 1970.

Senior Judge.

 

ADOPTION OF CHILDREN RULES

Citation.

1. These Rules may be cited as the Adoption of Children Rules.

Commencement.

2.—(1.) These Rules shall come into operation on the eighth day of February, 1971, and shall apply to all proceedings under the Adoption of Children Ordinance 1964-1969 instituted on or after that date.

(2.) The practice and procedure prescribed by the Adoption of Children Regulations, as in force immediately before the commencement of these Rules, with respect to proceedings under the Ordinance, including the provisions of those Regulations with respect to the fees payable in respect of proceedings under the Ordinance, continue to apply, after the commencement of these Rules, to and in relation to proceedings under the Ordinance that were instituted in the Supreme Court before the commencement of these Rules.

Rules supplementary to Supreme Court Rules.

3. These Rules shall be read as supplementary to, and (unless the contrary intention appears) not as amending or revoking anything in, the Supreme Court Rules.

Definitions.

4. In these Rules, unless the contrary intention appears—

“adoption order” means an order for the adoption of a child Under the Ordinance and includes an interim order under Division 5 of Part III. of the Ordinance;

“child” means a person who has not attained the age of twenty-one years, or a person who has attained that age and in respect of whom an adoption order is sought or has been made;

“delegate” means a person to whom a power or function of the Director has been delegated;

“form” means a form in the Schedule;

“the Court” means the Supreme Court of the Northern Territory of Australia;

“the Director” means the Director of Child Welfare;

“the Ordinance” means the Adoption of Children Ordinance 1964-1969;

“the Schedule” means the Schedule to these Rules;

 

* Notified in the Northern Territory Government Gazette on 1970.

18578/70—Price 10c 3/8.12.1970

 

“the Supreme Court Rules” means the Rules of the Supreme Court of the Northern Territory of Australia, being Statutory Rules 1966, No, 178 as amended from time to time, or any Rules which may be substituted for those Rules.

Forms.

5.—(1.) A reference in these Rules to a form by number shall be read as a reference to the form so numbered in the Schedule.

(2.) Strict compliance with a form is not necessary and substantial compliance is sufficient.

(3.) A form shall be completed in accordance with any directions contained in the form.

(4.) Any form may be used with the citation of the Ordinance as last amended substituted for the citation of the Ordinance set out in the form in the Schedule.

(5.) Subject to Rules 6, 13 and 24 of these Rules, a form may, in any proceedings under the Ordinance relating to the adoption of a child, be used with such variations as are necessary.

Application for adoption order.

6.—(1.) An application under section 11 of the Ordinance shall be by originating summons, in accordance with Form 1.

(2.) The applicants shall be the plaintiffs and the Director shall be a defendant.

Application for discharge of adoption order.

7. An application under section 18 of the Ordinance shall be by originating summons to which the child who was the subject of the adoption order shall be a defendant.

Application for order dispensing with consent.

8. An application under sub-section (2.) of section 27 of the Ordinance shall be by originating summons, the defendants to which shall include—

(a) the persons whose consent the Court is asked to dispense with; and

(b) the child concerned.

Application for order revoking order dispensing with consent.

9. An application under sub-section (3.) of section 27 of the Ordinance shall be by originating summons to which the Director and the person whose consent was dispensed with shall be parties.

Application for, order declaring validity of foreign adoption.

10. An application under section 41 of the Ordinance shall be by originating summons.

Proceedings to be inter partes.

11. All proceedings under the Ordinance shall be inter partes.

Surname need not be stated.

12. The surname of a child need not be stated in any proceedings.

Notice effected by service of summons.

13.—(1.) Notice under sub-section (1.) of section 15 of the Ordinance shall be given by serving the originating summons upon the person to whom notice is to be given.

(2.) Where a Court directs, under sub-section (3.) of section 15 of the Ordinance, that notice of an application for an adoption order is to be given to a person, notice shall be given to the person by serving the originating summons upon the person and, if the person is not named as a party to the summons, by serving at the same time and in the same manner a notice, in accordance with Form 2.

Service of originating summons.

14.—(1.) Service of an originating summons upon the Director may be effected by leaving a copy of the summons at the office of the Director in Darwin or by posting a copy to him at the address of his office in Darwin.

(2.) Service of an originating summons upon any other person shall be effected in like manner as personal service may be effected under the Supreme Court Rules.

(3.) The last two preceding sub-rules do not restrict the application of the Supreme Court Rules as to substituted service.

Appearance of delegate.

15. The appearance in person, in court or in chambers, of a delegate shall be deemed to be the appearance in person of the Director.

Delegation to be proved.

16. Where—

(a) a report by a delegate is filed; or

(b) a delegate appears in person in court or in chambers,

the delegation and the fact that it has not been revoked shall be proved by affidavit or by oral evidence.

Verification of reports.

17. A report received pursuant to section 14 of the Ordinance shall be verified by affidavit, but no copy of any such report shall be given to any party to the proceedings unless the Court so orders.

Notice of application for adoption order to be given to Director.

18.—(1.) Notice in writing of the date and time of hearing of an application for an adoption order shall be given to the Director not less than two clear days before the hearing.

(2.) The service of the notice may be effected in the manner in which an originating summons may be served on the Director under these Rules.

(3.) The service of the notice may be proved by affidavit.

Court may then presume application for adoption order not opposed.

19. Where, at the hearing of an application for an adoption order—

(a)neither the Director nor a person appointed by the Director for the purpose appears; and

(b) the report received pursuant to section 14 of the Ordinance does not express any opposition to the order applied for,

the Court may presume that the Director does not oppose the order applied for.

Hearing of proceeding.

20. Unless the Court otherwise orders, service of an originating summons shall be effected on the Director not less than fourteen days before the date fixed for the hearing of the summons.

(2.) The Court may abridge that period of fourteen days upon such terms as it thinks fit.

Affidavit of applicant for adoption order.

21.—(I.) An applicant for an adoption order shall file an affidavit by the applicant deposing to—

(a) the applicant’s full name, usual place of residence, occupation, domicile, marital status, age, place of birth, and state of health and particulars of the applicant’s financial circumstances;

(b)the sex, date of birth and state of health or, if deceased, the date of death, of any child (whether natural or adopted) of the applicant and, where the applicant is married, the likelihood of any children being born to him in the future;

(c) the relationship (if any) of the child sought to be adopted to the applicant and the period (if any) that the child has been living with the applicant;

 

(d) the amount and nature of any payment or reward in connexion with the proposed adoption that the applicant has made, given, received or agreed to make, give or receive;

(e) whether the applicant has ever been refused an adoption order or whether an adoption order in his favour has been discharged under the Ordinance; and

(f) the forenames to be given to the child sought to be adopted,

(2.) Where an application for an adoption order is made by a husband and wife, the affidavit under the last preceding sub-rule may be made by them jointly as if the reference in that sub-rule to the applicant were a reference to each of the applicants.

Documents to be filed.

22.—(1.) Subject to this rule, where the applicants for an adoption order are husband and wife, they shall file with the application a certificate or official record of their marriage and shall either identify the certificate or official record in, or annex acopy of that certificate or official record to, their affidavit or affidavits.

(2.) If it is impracticable to obtain a certificate or official record of their marriage, the applicants shall depose, in the affidavit made under the last preceding rule, to the reasons why it is so impracticable and to the details of the date and place of their marriage and the full maiden name of the wife.

(3.) The applicants shall file with the application the instrument of consent to the adoption of the child.

(4.) Subject to the next succeeding sub-rule, there shall be filed in support of the application a certificate or official record of the birth of the child, together with—

(a) evidence identifying the child as the person to whom the certificate or official record relates; or

(b)an affidavit or statement in writing by the Director that, having made due inquiry, the child is to the best of his knowledge, information and belief the person to whom the birth certificate or official record relates.

(5.) If it is impracticable to obtain a certificate or official record of the birth of a child sought to be adopted, the applicants shall depose, in the affidavit made under the last preceding rule, to the reasons why it is so impracticable.

(6.) If a certificate or official record filed under this rule is not written in the English language, a translation, in the English language, of the certificate or official record shall also be filed at the same time.

(7.) A translation of a certificate or official record filed under this rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the certificate or official record.

(8.) In this rule, a reference to a certificate or official record shall be read as a reference to—

(a) an original certificate or an original official record;

(b)a true copy or photographic representation of an original certificate or an original official record or of an entry in an official register, being a copy or representation certified as a true copy or a photographic representation by a person having the custody of the certificate or official record, or of the register containing the entry, of which it purports to be a true copy or photographic representation; or

 

(c) an extract from a record entered in an official register, being an extract issued under the Convention Concerning the Issue of Certain Extracts from Civil Status Records to be sent Abroad signed at Paris on the twenty-seventh day of September, 1956.

Consent to adoption to by verified by affidavit.

23. A consent to the adoption of a child under the Ordinance shall be verified by affidavit.

Form of adoptions order.

24. An adoption order shall be in accordance with Form 3.

Other orders.

25. Form 3 may be used, adapted as may be necessary, for any order under Part III. or Part IV. of the Ordinance.

 

THE SCHEDULE

Form 1 Rule 6

ORIGINATING SUMMONS FOR AN ADOPTION ORDER

IN THE SUPREME COURT OF THE

NORTHERN TERRITORY OF AUSTRALIA

No. of 19

IN THE MATTER OF A.B.

an infant

and

IN THE MATTER of the

Adoption of Children Ordinance

1964-1969

BETWEEN:

C.D. and E.F.

Plaintiffs

AND

G.H. (name of Director)

Defendant

LET G.H. the Director of Child Welfare of Darwin in the Northern Territory of Australia within eight days after service of this summons on him inclusive of the day of such service cause an appearance to be entered for him to this summons which is issued upon the application of CD. and E.F. of   for an order for the adoption of A.B. an infant by the plaintiffs.

Dated this  day of  , 19.

This summons was taken out by Solicitor for the plaintiffs.

The defendant may appeal hereto by entering an appearance either personally or by solicitor at the office of the Master, Darwin.

NOTE:—If the defendant does not enter an appearance within the time and at the place abovementioned, such order will be made and proceedings may be taken as the Judge thinks just and expedient.

Form 2  Rule 13

NOTICE PURSUANT TO RULE 13

(Heading as in Form 1 adapted if necessary)

To X.Y.Z. of

(Add, if appropriate,

AND to Messrs P.Q. & Co., his solicitors)

TAKE NOTICE that by order dated the  day of   , 19. the Court ordered that the originating summons served with this notice should be served on you to the intent that you might if so advised appear thereto within   days of service upon you and be heard upon the application notwithstanding that you are not named as a party to the summons.

RS. & Co.

(Address)

Solicitors for the plaintiff

Form 3  Rule 24

ORDER FOR ADOPTION

(Heading as in Form 1, adapted if necessary)

Before the Honourable Mr Justice in Chambers.

UPON THE APPLICATION of the abovenamed plaintiffs by originating summons dated the  day of    , 19,  UPON READING the affidavit of the plaintiffs filed herein on the day of  ,19 and the exhibits thereto and the affidavit of (name of witness to consent) filed herein on the day of  , 19  ,and the exhibit thereto being the consent in writing of (name of person consenting) the mother (or as the case may be)of the abovenamed infant to the adoption of the said infant and the affidavit of (name of person verifying report)filed herein on the day of ,19, and the exhibit (s) thereto being (or including) a report pursuant to section 14 of the abovementioned Ordinance AND UPON HEARING Mr. of counsel for the plaintiffs and Mr  (or the solicitors for the plaintiffs) (or as the case may be)AND the Judge being satisfied as to the matters set out in section 14 of the said Ordinance IT IS ORDERED:—

1. That the abovenamed infant (forenames only as in birth certificate) become the adopted child of the said (names of plaintiffs)

2. That the said infant shall henceforth bear the names (forenames and surname).

3. (Any other orders required).

Dated the  day of  , 19

This Order was obtained, etc.

MASTER

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