Family Court (Surrogacy) Rules 2009

The rules are short and procedural. Their principal concepts are: approved forms, parentage orders, ancillary applications, affidavit evidence, service and notice, and the integration with the Family Court’s broader rules.

• Approved forms (r 3(1), r 7(1), r 8(1), r 9(1)). The rules require applications and responses to be in a form approved by the Chief Judge. That approval power concentrates control over document format and required fields in the Chief Judge’s office. The source language is explicit: “approved, in relation to forms, means approved by the Chief Judge” (r 3(1)).

• Parentage order (r 3(1), r 7). The rules govern applications for parentage orders under the Surrogacy Act 2008. An application must be in an approved form (r 7(1)), filed with supporting documents (r 7(2)), and accompanied by affidavit evidence addressing the factual basis for Court satisfaction as required by the Surrogacy Act section 21(2) (r 7(3)).

• Ancillary application (r 3(1), r 8). The rules define “ancillary application” to mean applications for orders other than parentage orders and list specific Surrogacy Act provisions for which ancillary applications are expected (r 8 and the Table). Examples include leave to lodge out of time (s 20(3)), orders to dispense with certain statutory requirements (s 21(3)), ancillary orders (s 23), discharge of parentage orders (s 27), approval to vary an approved plan (s 30), alleging breach of an approved plan (s 31), and excluding persons from access to information (s 36).

• Affidavit evidence (r 7(3), r 8(2), r 8(3), r 9(2)). Applications and responses must be supported by affidavit evidence setting out the facts relied on. The rules require that affidavit evidence for ancillary applications be filed separately from affidavit evidence supporting a parentage order application (r 8(3)).

• Service and Court direction (r 10). The mode and recipients of service for sealed applications and supporting affidavits are not fixed by the rules; they are left to the Court’s direction. This gives the Court procedural discretion to tailor service to the circumstances.

• Non‑contentious handling and hearing notice (r 11, r 12). The Court may deal with non‑contentious applications in the absence of parties or their lawyers unless the Court directs otherwise (r 11). If a hearing is required, the Principal Registrar must give at least 28 days’ notice to all persons entitled to be heard, subject to the Court directing a different period (r 12).

• Integration with Family Court Rules 2021 (r 5). The Family Court Rules 2021 apply to the exercise of jurisdiction under the Surrogacy Act, importing the broader procedural framework of the Family Court into surrogacy matters.

These concepts show the instrument is procedural rather than substantive: it implements filing formats, evidence rules and timelines to operationalise the Surrogacy Act jurisdiction within the Family Court.

The rules affect multiple actors in a narrow procedural way. The primary affected parties are:

• Applicants for parentage orders: those who file under the Surrogacy Act 2008 must use approved forms and lodge specific documentary and affidavit evidence (r 7(1)-(3)). If the application is made jointly by two persons, a marriage certificate must be filed, if any (r 7(2)(b)). If the Surrogacy Act s 16(1) applies, applicants must file a copy of the Council’s approval (r 7(2)(a)).

• Persons seeking ancillary relief under the Surrogacy Act: anyone making an ancillary application identified in the Table (for example leave to lodge out of time s 20(3), variation of an approved plan s 30, discharge of a parentage order s 27) must file an approved form and supporting affidavit evidence (r 8(1)-(2)). The requirement that affidavit evidence for ancillary applications be separate from that supporting parentage orders (r 8(3)) affects case preparation and evidence organisation.

• Persons opposing applications: any person who seeks to oppose, or to obtain different orders, must file a response in an approved form with affidavit evidence (r 9(1)-(2)). That captures birth parents, arranged parents (as defined in the Surrogacy Act and cross‑referenced in r 3(1)), other family members, or statutorily entitled persons.

• The Chief Judge: has the administrative power to approve forms (r 3(1)), which shapes what applicants and respondents must lodge.

• The Court’s registry, specifically the Principal Registrar: responsible for giving notice of hearings (r 12). The Court also has the power to direct service methods (r 10) and whether a hearing is necessary (r 11).

• The Surrogacy Council referenced in the Surrogacy Act (Council), where its approvals are relevant to parentage order applications (r 7(2)(a)).

Less directly affected are legal practitioners who prepare the applications and affidavits, and any institutions or agencies that must supply documents (for example marriage certificates). The Family Court Rules 2021 apply to these proceedings (r 5), so parties and their lawyers are also affected by those broader rules as they interact with the surrogacy‑specific steps.

The rules do not create new substantive rights or obligations beyond procedural obligations; they operate to regulate how identified parties bring their claims or defences before the Court and the evidence they must organise.

The rules impose specific duties on applicants, respondents and the Court’s officers; they also establish procedural rights such as notice and the right to be heard.

Duties imposed on applicants for parentage orders (r 7):

• Use an approved form (r 7(1), r 3(1) on “approved” meaning the Chief Judge approves forms).
• File the application in the Court together with supporting documents: if s 16(1) of the Surrogacy Act applies, a copy of the Council’s approval; and if two persons apply jointly, the marriage certificate if any (r 7(2)(a)-(b)).
• Accompany the application with affidavit evidence setting out the facts required for the Court to be satisfied under Surrogacy Act s 21(2) (r 7(3)).

Duties for ancillary applicants (r 8):

• Use an approved form for the specified ancillary applications listed in the Table (r 8(1)).
• File the ancillary application in Court accompanied by affidavit evidence of the facts relied on (r 8(2)).
• Keep the affidavit evidence for ancillary applications separate from affidavit evidence supporting a parentage order application (r 8(3)).

Duties for respondents (r 9):

• File a response in an approved form if opposing or seeking different orders (r 9(1)).
• Accompany the response with affidavit evidence as to facts relied on (r 9(2)).

Duties as to service and Court directions (r 10):

• Serve a sealed copy of the application/response and the supporting affidavit on persons and in a manner as the Court directs (r 10). That is a duty derived from a Court direction; the rules do not prescribe fixed service methods.

Duties on Court registry (r 12):

• The Principal Registrar must give at least 28 days’ notice of time and place of hearing to all persons entitled to be heard, unless the Court directs otherwise (r 12).

Rights and procedural protections:

• Right to be heard: persons “entitled to be heard” must receive notice (r 12). The rules do not list who those persons are; entitlement is determined under the Surrogacy Act and Court practice.
• Right to non‑attendance for non‑contentious matters: the Court may deal with a non‑contentious application in the absence of any party or the party’s lawyer, unless the Court directs otherwise (r 11). This is presented as a default position to streamline uncontested applications.
• Discretionary protections: the Court can direct service methods (r 10), allow different notice periods (r 12), and determine whether a hearing is necessary (r 11); these are decision nodes where the Court exercises procedural discretion.

Other cross‑cutting obligations:

• The Family Court Rules 2021 apply to these proceedings (r 5). Parties must therefore comply with the general obligations, timeframes and processes in those rules in addition to the surrogacy‑specific prescriptions here.

The rules are silent on fees, sanctions or detailed timetabling beyond the 28‑day default hearing notice; those matters are left to the Family Court Rules 2021, Court practice directions, or statutory provisions in the Surrogacy Act. The duties here focus on form, evidence and service, with the Chief Judge’s approval power over forms and the Court’s directions governing execution.

The Family Court (Surrogacy) Rules 2009 are procedural rules and do not themselves prescribe criminal sanctions or monetary penalties. Enforcement is effected through the Family Court’s procedural machinery and judicial powers rather than through express penalty provisions in these rules.

Key enforcement mechanisms and practical consequences embedded in the rules:

• Procedural compliance as a precondition to effective hearings: applications and responses must be filed in approved forms and supported by affidavits (r 7, r 8, r 9). Failure to comply with those filing and evidentiary requirements will expose the application or response to Court directions, potential rejection, or orders limiting the contested material, under the Court’s broader procedural powers as imported by r 5 (the Family Court Rules 2021). The rules themselves do not list specific remedies for non‑compliance, but they operate within the Court’s enforcement powers.

• Service directed by the Court (r 10): the Court determines who must be served and how. If a party fails to effect service as the Court directs, the Court may stay, dismiss, or require re‑service, or make orders as to consequences for the party’s case under the Court’s general powers in the Family Court Rules 2021.

• Control of hearings and evidence: the Court can decide whether a hearing is necessary (r 11) and can proceed in the absence of parties on non‑contentious matters. Non‑appearance where attendance is required may lead to orders being made in the absence of the non‑attending party, which is an enforcement consequence of procedural defaults.

• Notice obligations enforced by the Principal Registrar (r 12): the default 28‑day notice period is a protective rule. If notice is not properly given, affected persons may seek procedural relief from the Court, including adjournments or orders invalidating proceedings on fairness grounds.

• Integration with Family Court Rules 2021 (r 5): enforcement and sanctions available in that broader ruleset (for example, costs orders, contempt powers, striking out, or directions hearings) apply to surrogacy matters. The rules do not duplicate those enforcement mechanisms but rely on them.

The rules do not create any new criminal offences, regulatory penalty regime, or statutory fines. They situate surrogacy‑related applications within the Family Court’s procedural enforcement environment; practical enforcement thus depends on the Court exercising its general powers under the Family Court Rules 2021 and the Surrogacy Act 2008.

The rules are expressly designed to operate in tandem with, and subordinate to, two primary instruments: the Surrogacy Act 2008 and the Family Court Rules 2021.

• Surrogacy Act 2008. The rules repeatedly cross‑refer to provisions of the Surrogacy Act. Definitions in r 3(1) (for example “arranged parents”, “birth parents”, “parentage order”, and “Council”) are those used in the Surrogacy Act (r 3(1) cross‑references s 14 and s 15 of the Surrogacy Act). Filings required under r 7 must address the Court’s satisfaction as required by s 21(2) of the Surrogacy Act (r 7(3)). The ancillary application Table in r 8 maps specific ancillary applications to Surrogacy Act sections (s 20(3), s 21(3), s 23, s 27, s 30, s 31, s 36). The commencement of these rules is linked to the commencement of s 20 of the Surrogacy Act (r 2(b)). This shows the rules are procedural instruments designed to operationalise the Surrogacy Act’s substantive scheme.

• Family Court Rules 2021. Rule 5 expressly makes the Family Court Rules 2021 applicable to the Court’s exercise of jurisdiction under the Surrogacy Act. That means the broader procedural provisions, time limits, case management powers, interlocutory processes, disclosure rules, and sanctioning mechanisms contained in the Family Court Rules 2021 apply alongside the surrogacy‑specific rules. The 2021 insertion (noted in the marginal note for r 5) supplants earlier procedural detail and centralises procedural governance in the Family Court Rules 2021.

• Court administrative powers. The Chief Judge’s power to approve forms (r 3(1) and reflected in r 7(1), r 8(1), r 9(1)) interacts with court administration practice. The Principal Registrar’s duty to give hearing notice (r 12) operates within registry functions and will be subject to directions and practice that sit within the broader Family Court regime.

• Evidence and civil procedure frameworks. The rules require affidavit evidence (r 7(3), r 8(2), r 9(2)), thereby engaging ordinary rules of evidence and affidavit formality that are part of the Family Court Rules 2021 and general court practice. Affidavit content must be shaped to satisfy statutory tests in the Surrogacy Act (for instance s 21(2)).

• Absence of criminal/regulatory overlay. The rules do not create an enforcement overlay outside the Court’s civil and family procedure powers. Any criminal or administrative consequences tied to non‑statutory conduct would be governed by other laws; these rules are silent on such intersections.

In sum, the Family Court (Surrogacy) Rules 2009 are a procedural adjunct to the Surrogacy Act 2008 and a specialised subset of the Family Court procedural framework provided by the Family Court Rules 2021. Questions about substantive eligibility, statutory discretion, and the identity of persons entitled to be heard are resolved under the Surrogacy Act, while procedural execution, case management and sanctions are principally drawn from the Family Court Rules 2021 and the Court’s inherent powers.

The instrument’s compilation table and marginal notes disclose a limited amendment history. The original rules, the Family Court (Surrogacy) Rules 2009, were published on 25 February 2009 and most provisions commenced on 1 March 2009 as the Surrogacy Act 2008 s 20 came into operation (r 2 and Compilation table). Two items of the amendment history are visible in the text provided:

• Family Court Rules 2021 insertion (r 5). The marginal note records that rule 5 was inserted by Statutory Law (SL) 2021/148, r 556(2). This amendment makes the Family Court Rules 2021 applicable to the exercise by the Court of jurisdiction under the Surrogacy Act 2008 (r 5). The compilation table records that the relevant Part of the Family Court Rules 2021 (Pt. 30) was made by SL 2021/148 on 18 August 2021 and came into operation on 23 August 2021.

• Deletion of rule 6. The marginal note shows that rule 6 was deleted by the same instrument (SL 2021/148 r 556(2)). The current text includes “[6. Deleted: SL 2021/148 r. 556(2).]” without reproducing the deleted material.

The rules otherwise remain as originally enacted, with the substantive amendments noted above the only changes shown in the provided source. The compilation table confirms the initial publication and commencement dates and records the later Family Court Rules 2021 insertion.

No other amending instruments, statutory notes, or schedules are included in the text provided. The Chief Judge’s ongoing authority to approve forms is embedded in the rules as originally framed and is unaffected by the insertion of the Family Court Rules 2021 reference. Any further changes to forms, practice directions, or the Family Court Rules 2021 will operate as amendments in practice, but they are not reflected here.

Practitioners should note the linkage: the procedural landscape for surrogacy matters was updated in 2021 by bringing general Family Court procedure (Family Court Rules 2021) to bear, and this change also removed a now‑deleted rule 6. The precise text of the deleted provision would need to be checked in legislative amendment records for a complete historical account; the current rules contain only the insertion and deletion marginal notes cited.

The text supplied does not include any case law, judicial commentary, or reported decisions that interpret or apply these specific rules. No cases are named in the instrument; the rules themselves are procedural directions rather than substantive statutes likely to generate reported authorities on construction. The document contains no references to litigation outcomes, judicial guidance on evidentiary thresholds under s 21(2) of the Surrogacy Act, or precedential statements about the Court’s exercise of discretion under these rules.

What the rules do show is the deliberate choice to leave several procedural matters to judicial or administrative direction (for example service “as the Court directs”, r 10; whether a hearing is necessary, r 11; the Court’s ability to vary notice periods, r 12). These open points are the kinds of issues that generate case law in other contexts, but no such litigation history is recorded in the provided source.

If a practitioner wants to locate litigation applying these rules, the next steps are:

• Search Family Court of Western Australia decisions that cite the Surrogacy Act 2008 and specifically s 21 or s 20 and look for references to the Family Court (Surrogacy) Rules 2009 or the Family Court Rules 2021 in the reasons.
• Check the reporter systems, AustLII, or the Court’s published judgments for parental orders, ancillary orders (s 27, s 30, s 31), and contested cases where service or notice issues were material.

As the supplied material contains no litigation references, no claims about judicial interpretation can be made from this source alone. Any statements about how courts have applied the requirements to affidavit material, service methods, or the threshold for s 21(2) satisfaction must be supported by separate case law research.

The rules include several procedural features that commonly cause error or delay if not attended to carefully. Below are concrete points to watch, cross‑referenced to the rule numbers.

• Approved forms only (r 7(1), r 8(1), r 9(1); r 3(1)). Applications and responses must be in forms approved by the Chief Judge. Using an incorrect or outdated form may lead to rejection, directions to refile, or an immediate request for curative orders. Practitioners should confirm they are using the version approved by the Chief Judge at the time of filing.

• Documentary prerequisites for parentage orders (r 7(2)). If s 16(1) of the Surrogacy Act applies, a copy of the Council’s approval must be filed with the application (r 7(2)(a)). When applicants are two persons applying jointly, a marriage certificate (if any) must be lodged (r 7(2)(b)). Omitting these items can trigger directions hearings or adjournments.

• Affidavit evidence targeted to Surrogacy Act thresholds (r 7(3)). The application must be accompanied by affidavits addressing the facts the Court must be satisfied about under s 21(2) of the Surrogacy Act. Practitioners cannot rely on generic affidavits; the contents must be tailored to the statutory satisfaction points in s 21(2). Because the rules cross‑refer to s 21(2) without setting out its terms, counsel must consult the Surrogacy Act text to ensure relevant facts are covered.

• Separate affidavits for ancillary matters (r 8(3)). Affidavit evidence supporting ancillary applications must be separate from affidavits supporting parentage order applications. Placing all matters into a single affidavit risks non‑compliance and may complicate admissibility or procedural sequencing.

• Service is at the Court’s direction (r 10). There is no prescriptive service schedule; the Court will specify who must be served and how. That places an additional step on practitioners to obtain and comply with the Court’s directions about service. Failure to follow the Court’s directions on service can affect notice and the validity of orders later made.

• Non‑appearance in non‑contentious matters (r 11). While the Court may decide non‑contentious applications without parties present, parties should not assume that will be the case. The Court “unless it directs otherwise” may proceed without attendance; if parties prefer to be present or ensure personal attendance rights are preserved, they must seek directions.

• Default 28‑day notice subject to variation (r 12). The Principal Registrar must give at least 28 days’ notice for hearings unless otherwise ordered. However, the Court can vary this. Parties ought to check whether expedited hearings are being sought by others and be prepared to apply for directions if shorter notice is provided.

• Interaction with Family Court Rules 2021 (r 5). Many procedural consequences, timelines, disclosure obligations and costs consequences will be supplied by the Family Court Rules 2021. Practitioners must ensure compliance with both instruments; failing to do so can have procedural consequences beyond the surrogacy rules themselves.

• Chief Judge’s approval centralises control over forms (r 3(1)). Changes to form content or requirements can be made administratively by the Chief Judge, meaning practice can change without legislative amendment. Keep an eye on court circulars and registry practice notices.

• No explicit service list in the rules (r 10). The rules do not list “persons entitled to be heard”; that determination is statutory or case‑by‑case. Parties must research entitlement under the Surrogacy Act and seek directions where entitlement is unclear.

Each of these is a concrete procedural trap: approved forms, tailored affidavits, separate affidavit requirements, court‑directed service, and cross‑reference to the Family Court Rules 2021. Attention to each mitigates the risk of case delay, re‑filing or adverse procedural orders.

This section sets out a practical, stepwise compliance checklist drawn strictly from the rules. It assumes familiarity with the Surrogacy Act 2008 and the Family Court Rules 2021, both of which the practitioner must consult in parallel.

Checklist for an applicant seeking a parentage order (r 7):

1. Confirm the applicant is instituting a parentage order under the Surrogacy Act 2008 and identify which statutory criteria must be met (especially s 21(2)).
2. Obtain and use the form approved by the Chief Judge for applications for parentage orders (r 7(1); r 3(1)). Verify the current approved version with the Court registry or the Chief Judge’s office.
3. Gather required documentary attachments:
   • If Surrogacy Act s 16(1) applies, obtain a certified copy of the Council’s approval and include it with the filing (r 7(2)(a)).
   • If two persons are applying jointly, include the marriage certificate, if any (r 7(2)(b)).
4. Prepare affidavit evidence specifically addressing the facts the Court must be satisfied about under s 21(2). Ensure the affidavit is sworn/affirmed in the required form and contains evidentiary material that maps to the statutory satisfaction points (r 7(3)).
5. File the approved form, attachments and affidavits in the Court registry.

Checklist for ancillary applications (r 8):

1. Identify the relevant Surrogacy Act provision from the Table (for example s 20(3), s 21(3), s 23, s 27, s 30, s 31, s 36).
2. Use the ancillary application form approved by the Chief Judge for that specific type of application (r 8(1)).
3. Prepare and file affidavit evidence as to the facts relied upon for the ancillary orders (r 8(2)). Keep these affidavits separate from any affidavits filed in support of a parentage order application (r 8(3)).
4. File the ancillary application and supporting affidavit(s) in Court.

Responding to an application (r 9):

1. If opposing or seeking different orders, complete the response form approved by the Chief Judge (r 9(1)).
2. Prepare affidavit evidence setting out the facts relied on in support of the response and file it with the response (r 9(2)).
3. File the response and affidavits in the Court registry.

Service (r 10):

1. After filing, seek the Court’s direction on service if not already provided by the registry. The rules require serving a sealed copy of the application or response and the supporting affidavit “on persons and in a manner, as the Court directs” (r 10).
2. Implement the Court’s service directions promptly and obtain proof of service where appropriate.

Hearing management (r 11, r 12):

1. Be prepared for the Court to deal with non‑contentious matters in the absence of parties unless the Court orders attendance (r 11). If presence is desired, seek directions or note in filings the need to appear.
2. Monitor the Principal Registrar’s notice of hearing. Expect at least 28 days’ notice of hearing unless the Court specifies a different period (r 12). Calendar and prepare witnesses and evidence accordingly.

Cross‑compliance:

1. At all stages, ensure compliance with the Family Court Rules 2021 (r 5). Check for time limits, disclosure obligations, costs consequences and other procedural obligations in that instrument.
2. Keep updated with any form changes approved by the Chief Judge and any practice directions issued by the registry.

Practical tips:

• Separate affidavit files: keep separate affidavit bundles for parentage orders and for any ancillary applications (r 8(3)). This avoids procedural objections and simplifies case management.
• Confirm who is “entitled to be heard” under the Surrogacy Act for the specific matter, and ensure service and notice to those persons as directed by the Court.
• Do not rely on an assumption of default service methods; always check the Court’s direction for service in surrogacy matters (r 10).
• Where timing is critical (for example leave to lodge out of time, s 20(3)), consider early interlocutory steps and seek directions to preserve rights.

Following these steps will place filings and responses in alignment with the Family Court (Surrogacy) Rules 2009. Because these rules operate within the Family Court Rules 2021 framework, practitioners should adopt that broader ruleset into their standard practice for surrogacy matters.