Uniform Civil Procedure Rules (Amendment No 40) 2011 (NSW)
2011 No 61
New South Wales
Uniform Civil Procedure Rules
(Amendment No 40) 2011
under the
Civil Procedure Act 2005
The Uniform Rules Committee has made the following rules of court under the Civil
Procedure Act 2005.
Steven Jupp
Secretary of the Uniform Rules Committee
Explanatory note
The object of these Rules is to amend the Uniform Civil Procedure Rules 2005 to establish rules in relation to matters arising under the Surrogacy Act 2010.
| Published LW 11 February 2011 | Page 1 |
| 2011 No 61 | |
| Rule 1 | Uniform Civil Procedure Rules (Amendment No 40) 2011 |
Uniform Civil Procedure Rules (Amendment No 40) 2011
under the
Civil Procedure Act 2005
1 Name of Rules
These Rules are the Uniform Civil Procedure Rules (Amendment No 40)
2011.
2 Commencement
These Rules commence on 1 March 2011 and are required to be published on the NSW legislation website.
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Uniform Civil Procedure Rules (Amendment No 40) 2011
| Amendment of Uniform Civil Procedure Rules 2005 | Schedule 1 |
| Schedule 1 | Amendment of Uniform Civil Procedure Rules 2005 |
[1] Part 56A
Insert after Part 56:
Part 56A Matters arising under the Surrogacy Act
2010
| 56A.1 | Interpretation | |||
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| 56A.2 | Commencement of proceedings | |||
| (1) Once proceedings (the original proceedings) have been commenced under the Surrogacy Act 2010 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) The originating process is not to state a return day. (3) The Supreme Court may of its own motion appoint a day for the
hearing of the proceedings.(4)
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.
(5)
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.
| 56A.3 | Duty to make full and frank disclosure |
Each party to proceedings in the Supreme Court under the Surrogacy Act 2010 has a duty to the Court to make known fully and frankly all matters relevant to the making of a parentage
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Uniform Civil Procedure Rules (Amendment No 40) 2011
| Schedule 1 | Amendment of Uniform Civil Procedure Rules 2005 |
order, whether those matters tend to support or tend not to
support making the order.Note. See also rule 56A.9 which requires affidavit evidence of the legal advice given to the affected parties.
| 56A.4 | How application for parentage order is to be dealt with | |||||||||
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| 56A.5 | Preliminary hearing | |||||||||
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| 56A.6 | Applications appropriate for preliminary hearing | |||||||||
| (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 a parentage order or other principal application. |
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Uniform Civil Procedure Rules (Amendment No 40) 2011
| Amendment of Uniform Civil Procedure Rules 2005 | Schedule 1 |
(2) Applications appropriate for a preliminary hearing include
applications relating to the following:
(a) joinder of a party, (b) giving notice of proceedings to any person, (c) appointing a guardian ad litem or amicus curiae, (d)
whether the application for a parentage order should not be dealt with under rule 56A.4 (1).
| 56A.7 | Filing of report in accordance with section 17 of the Surrogacy Act 2010 |
A plaintiff applying for a parentage order must file a report under section 17 of the Surrogacy Act 2010:
(a)
except as provided by paragraph (b), when filing the originating process, or
(b)
if there is a preliminary hearing, before the preliminary hearing.
| 56A.8 | Evidence in support of application for parentage order |
Evidence in support of an application for a parentage order must include evidence of the following:
(a) the date and place of the child’s birth, (b)
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,
(c)
the names that it is proposed the child should have on the making of the parentage order, showing separately the proposed given name or names and the proposed surname,
(d)
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,
(e)
the name, place of residence, age and occupation of each birth parent,
(f)
the name, place of residence, age and occupation of each intended parent,
(g)
if a single intended parent is seeking leave to make a sole application (in relation to a surrogacy arrangement involving 2 intended parents), the facts and circumstances that show that leave may be given having regard to section 14 of the Surrogacy Act 2010,
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Uniform Civil Procedure Rules (Amendment No 40) 2011
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(h) the facts and circumstances that show that a parentage order may be made, demonstrated by reference to each of the preconditions to the making of a parentage order set out in Division 4 of Part 3 of the Surrogacy Act 2010, (i) in relation to any precondition to the making of a parentage order that is not met, the facts and circumstances that show that a parentage order may be made despite the precondition having not been met, having regard to section 18 of the Surrogacy Act 2010,
(j)
the medical or social need for the surrogacy arrangement, including copies of all medical or other reports relied on to establish the medical or social need for the surrogacy arrangement,
(k)
the consent of the affected parties to the making of the parentage order.
| 56A.9 | Affidavit of Australian legal practitioner | |||
|
(a)
the name of the affected party to whom the advice was given, the role of the affected party and the date the advice was given, and
(b)
that independent legal advice was given to the person before the person entered into the surrogacy arrangement, and
(c)
the Australian legal practitioner’s belief that the person appeared to understand the legal advice given.
(3)
This rule does not apply in respect of a pre-commencement surrogacy arrangement (within the meaning of the Surrogacy Act 2010).
| 56A.10 | Access to Court records | |
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Uniform Civil Procedure Rules (Amendment No 40) 2011
| Amendment of Uniform Civil Procedure Rules 2005 | Schedule 1 |
(2) An applicant for leave must file an affidavit:
(a) identifying the proceedings in the Supreme Court to which the application relates, and (b) setting out the basis on which leave is sought and the facts relevant to the application, and (c) identifying the affected persons and whether notice of the application has been given to the affected persons.
[2] Schedule 8 Assignment of business in the Supreme Court
Insert in appropriate order in columns 1 and 3 of Part 1:
Surrogacy Act 2010 Equity
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