LOCAL COURT (SURROGACY) RULES 2022

The Rules define key terms by reference to section 3 of the Surrogacy Act 2022. Applicant means a person applying for a parentage order. Application means an application to the court under the Surrogacy Act 2022. Birth parent has the meaning given in section 3 of that Act, which includes the surrogate mother and any other person who is a parent of the child. Child means a child born under a surrogacy arrangement. Intended parent is defined by the Surrogacy Act and means the person or persons who enter into the surrogacy arrangement with the intention of becoming the legal parents of the child. Parentage order is the order made under section 34 of the Surrogacy Act 2022 that transfers parentage. Partner is defined by reference to the Surrogacy Act, which includes a spouse or de facto partner. Respondent means a person who is opposing the revocation of a parentage order. Surrogate mother and surrogacy arrangement are likewise defined by the Surrogacy Act.

The concept of surrogacy proceedings (rule 4) confirms that these Rules apply to any proceeding under the Surrogacy Act 2022, not only parentage order applications but also revocation applications. The pre-hearing conference is a mandatory early step (rule 10). On filing an application, a registrar must fix a date for a pre-hearing conference no later than 14 days after filing, or as soon as practicable after that period. The conference must be held informally. Each party must attend in person or by a legal practitioner. At the conference the court may give directions about appointing a legal practitioner to represent the child, directions for expeditious determination, adjourn the conference, or fix a date for hearing.

The duty to make full and frank disclosure (rule 11) is a central procedural obligation. Each party must make known fully and frankly all matters relevant to the making or revocation of a parentage order, whether those matters support or oppose the order. This goes beyond mere formal compliance and requires voluntary disclosure of any information that could affect the court's decision. It is similar to the duty of utmost good faith in family provision proceedings.

Affidavits in support are detailed in Part 3 (rules 12 to 15). In addition to material required by section 28 of the Surrogacy Act 2022, the application must be supported by an affidavit from each applicant, the surrogate mother, any other birth parent, and any other party to the surrogacy arrangement. If the court dispenses with the consent of a person under section 32(3) or (4) of the Surrogacy Act 2022, that person's affidavit is not required (rule 12(3)). The content of each type of affidavit is prescribed in rules 13, 14 and 15. For revocation applications (Part 4), the applicant must file an affidavit with a copy of the parentage order and reasons for revocation (rule 16). A respondent must file a response in an approved form (rule 17) and an affidavit as directed by the court, no later than 14 days before the hearing (rule 18).

Service must be personal unless the court orders otherwise (rule 9(1)). Documents supporting an application or response must be served on the same persons as the notices of the application under sections 26(5) and 40(3) of the Surrogacy Act 2022. An affidavit of service must be filed no later than 7 days before the first pre-hearing conference, deposing to the nature of the document, who served it, and the time, date and particulars of service.

The court may dispense with compliance with these Rules (rule 6) and may adopt procedures from the Local Court (Civil Jurisdiction) Rules 1998 if the manner or form of a procedure is not prescribed (rule 5). The application is taken to be made on the date of filing (rule 7).

The Rules directly affect any person who is a party to a surrogacy arrangement involving the Northern Territory Local Court. Primarily, this means intended parents who seek a parentage order to become the legal parents of a child born through surrogacy. They must file the application, prepare detailed affidavits, serve documents personally, attend a pre-hearing conference, and comply with the duty of full and frank disclosure. Intended parents may be single or joint applicants (two intended parents who are partners). The Rules also affect the surrogate mother, who must provide an affidavit consenting to the parentage order and disclosing personal information including her partner and whether that partner is a birth parent. Any other birth parent of the child (which could be the surrogate mother's partner if they are a biological parent) and any other party to the surrogacy arrangement (such as an agency or a known donor) must also provide affidavits unless the court dispenses with consent.

The Rules affect respondents in revocation proceedings. A person who opposes the revocation of a parentage order must file a response and an affidavit. This could include intended parents, the surrogate mother, or any person with a sufficient interest under the Surrogacy Act 2022. The child is also affected indirectly by the Rules, as the court may appoint a legal practitioner to represent the child, and the duty of full and frank disclosure ensures the court has all relevant information.

Legal practitioners advising clients on surrogacy matters in the Northern Territory must understand these Rules to ensure applications are properly prepared and filed. The requirement for personal service (rule 9(1)) places a logistical burden on applicants or their lawyers. The pre-hearing conference within 14 days requires prompt preparation. The detailed affidavit requirements compel practitioners to gather extensive personal and financial information, including whether any payment, reward or material benefit beyond reasonable costs was offered or received (rule 13(i) and (j)). This affects accountants and compliance professionals who may need to advise on what constitutes reasonable costs under section 12 of the Surrogacy Act 2022, and whether any payments must be disclosed.

The Local Court itself is affected through its registrars who fix pre-hearing conference dates, its judges who hear applications, and the Chief Judge who approves forms. The Rules impose a structured workflow that must be administered. The Chief Judge's approval of forms means that the precise content of applications and responses is not directly in the Rules but will be published separately, affecting how parties and practitioners prepare documents.

Journalists and researchers covering surrogacy law in the Northern Territory will find these Rules relevant because they reveal the level of court scrutiny, the requirement for full disclosure, and the speed of proceedings (pre-hearing conference within 14 days). The Rules also affect any person who needs to serve documents under the Surrogacy Act, as personal service is mandatory unless the court orders a different method.

The central duty imposed by the Rules is the duty to make full and frank disclosure (rule 11). Each party to the proceeding must make known to the court all matters relevant to the making or revocation of a parentage order, regardless of whether those matters tend to support or oppose the order. This is not merely a duty to respond to requests; it is an active obligation to volunteer relevant information. Failure to comply could result in the court refusing to make the order or revoking it later. The duty applies to all parties, not just the applicant. It is a higher standard than the usual adversarial duty because surrogacy proceedings involve the welfare of the child and the integrity of the parentage transfer.

Applicants have the duty to file the application (rule 7) and to serve all supporting documents personally on the persons identified in sections 26(5) and 40(3) of the Surrogacy Act 2022 (rule 9(2)). They must file an affidavit of service no later than 7 days before the first pre-hearing conference (rule 9(3)). They must attend the pre-hearing conference in person or by a legal practitioner (rule 10(4)). If they are joint applicants, one affidavit may rely on facts deposed in the other's affidavit (rule 13(2)). Applicants have the right to ask the court to dispense with the consent of a person under section 32(2) of the Surrogacy Act 2022 (rule 13(m)).

The surrogate mother has the duty to provide an affidavit if required (rule 12(1)(b)), unless the court dispenses with her consent (rule 12(3)). Her affidavit must include her name, date of birth, residence, Australian citizenship or permanent residency, her consent to the parentage order, whether she has a partner and details of that partner, and any other relevant matters (rule 14). Similarly, any other birth parent or other party to the surrogacy arrangement must provide an affidavit with their identity and consent (rule 15).

Respondents to revocation applications have the duty to file a response in the approved form (rule 17) and to file an affidavit as directed by the court and no later than 14 days before the hearing (rule 18). In their affidavit they must depose the reasons for opposing the revocation and any other relevant matters.

All parties have the right to seek an order dispensing with compliance with the Rules (rule 6). The court may dispense before or after the time for compliance arises, which provides flexibility if strict compliance would cause injustice. Parties also have the right to have the court adopt procedures from the Local Court (Civil Jurisdiction) Rules 1998 if these Rules or an Act do not prescribe a procedure (rule 5(1)). An act done in accordance with a court order under that rule is taken to be regular and sufficient (rule 5(2)).

The court has the right to give directions for the expeditious determination of proceedings, including the filing of additional evidence, and to adjourn the pre-hearing conference or fix a hearing date (rule 10(5)). The court may also appoint a legal practitioner to represent the child, which protects the child's interests without the child being a formal party.

These Rules do not themselves create criminal penalties or fines. They are procedural rules, not penal instruments. Enforcement occurs through the court's control over its own process. If a party fails to comply with a duty under the Rules, the court may refuse to make the parentage order, may dismiss the application, may make adverse findings, or may order costs. The duty of full and frank disclosure (rule 11) is especially significant: if a party conceals a relevant matter, even inadvertently, the court may infer that the order should not be made, or if the order has already been made, that it should be revoked. Section 40 of the Surrogacy Act 2022 provides for revocation, and the Rules support that process.

Failure to serve documents personally (rule 9(1)) could result in the court not considering the filing or in the application being adjourned until proper service is effected. An applicant who fails to file an affidavit of service at least 7 days before the first pre-hearing conference (rule 9(3)) may find the conference adjourned or the application struck out. The court may also dispense with service in the ordinary course where it has been served irregularly.

Failure to attend the pre-hearing conference (rule 10(4)) may lead the court to proceed in the party's absence, make directions without their input, or require them to show cause why the application should not be determined on the papers. The court may also fix a hearing date that the absent party may not be ready for.

The most serious consequence is the potential for a false or misleading affidavit. While the Rules do not specify a penalty for false statements, the general law of perjury and contempt of court applies. A party who knowingly makes a false statement in an affidavit could face prosecution under the Criminal Code (NT) or be held in contempt of court, which carries penalties including fines or imprisonment. Further, if a payment or reward beyond reasonable costs was offered or received (rule 13(i) and (j)) and that fact is not disclosed, the court may not only refuse the parentage order but may refer the matter to the Director of Public Prosecutions if the payment constitutes an offence under the Surrogacy Act 2022.

The Rules give the court flexibility through rule 6 (dispensing with compliance) and rule 5 (adopting other procedures), so enforcement is not rigid. However, a party who relies on these provisions to avoid complying must seek a court order. Proactive non-compliance is risky. Costs orders may be made against a party who causes unnecessary delay or expense by failing to follow the Rules.

For legal practitioners, the duty to disclose extends to the client and the practitioner. If a practitioner knowingly assists a client to hide a relevant matter, they may face professional misconduct proceedings. The Rules thus create indirect enforcement through professional obligations.

Ultimately, the strongest enforcement mechanism is the court's control over whether to grant the parentage order. Without strict compliance with the affidavit and disclosure requirements, the court cannot be satisfied that the conditions in the Surrogacy Act 2022 are met, and the order will be refused.

These Rules are made under the Local Court Act 2015 and must be read with the Surrogacy Act 2022 (NT), which is the primary legislation governing surrogacy arrangements and parentage orders. The Rules were commenced on the same day as section 2 of the Surrogacy Act 2022, so they have always operated alongside the substantive provisions. The Rules explicitly cross-reference sections of the Surrogacy Act 2022: sections 26 (application for parentage order), 28 (material to accompany application), 32 (consent and dispensation), 40 (revocation), and 46 (notice to Registrar). The Rules fill the procedural gaps that the Surrogacy Act leaves to the court's rules. For example, section 26(5) requires notice of the application to be served on specified persons; the Rules prescribe that service must be personal (rule 9(1)) and set out the time for filing an affidavit of service (rule 9(3)). The Rules also require additional affidavit content beyond what section 28 of the Surrogacy Act requires, meaning the Rules impose a higher information burden than the Act alone.

Rule 5 incorporates the Local Court (Civil Jurisdiction) Rules 1998 for any procedure not prescribed. This means that general civil procedure rules from that instrument apply to surrogacy proceedings where these Rules are silent, such as filing fees, formal requirements for affidavits, and the power to subpoena documents. However, rule 5(1) says the court may adopt those procedures, not that it must. So the court has discretion. This interaction may cause uncertainty if practitioners assume that civil rules apply automatically.

The Rules also interact with the Evidence Act (NT) regarding the admissibility of affidavits and the requirement for personal service. The duty of full and frank disclosure (rule 11) is a procedural obligation that overrides ordinary adversarial privilege in some respects, because a party cannot withhold relevant information even if it would be against their interests. This interacts with legal professional privilege; while privilege may protect advice from disclosure, the duty to disclose facts is separate.

The notice to the Registrar under section 46(2) of the Surrogacy Act 2022 (which concerns registration of the parentage order) must be in a form approved by the Chief Judge (rule 8(d)). This links the Rules to the Births, Deaths and Marriages Registration Act (NT) and the administrative processes for altering parentage on the register.

The Surrogacy Act 2022, at section 12, only allows payments for reasonable costs. The Rules require applicants to disclose whether any payment, reward or other material benefit was offered or received beyond those reasonable costs (rule 13(i) and (j)). This creates a direct interaction with the law relating to commercial surrogacy arrangements. If an applicant discloses a prohibited payment, the court must consider whether that renders the surrogacy arrangement void or the parentage order improper.

The amendment of the Rules by the Attorney General Legislation Amendment Act 2025 shows that the Rules are subject to amendment by ordinary legislative process, and practitioners must check for subsequent amendments. The amendment affected rule 1 (the title), which may update the citation to reflect the year or other changes.

The Rules do not interact directly with the Family Law Act 1975 (Cth), because surrogacy parentage orders are a state/territory matter. However, the making of a parentage order under NT law may affect parenting orders under federal law. The Rules do not address that interaction.

The Local Court (Surrogacy) Rules 2022 were made on 15 December 2022 as SL No. 26 of 2022. They commenced on 20 December 2022, the day that section 2 of the Surrogacy Act 2022 commenced, as per rule 2. The original version came into force with the substantive Act.

The only amendment recorded in the source endnotes is by the Attorney General Legislation Amendment Act 2025 (Act No. 14, 2025). That Act received assent on 6 June 2025 and commenced on 1 August 2025 (Gazette G14, 10 July 2025, page 1). The amendment affected rule 1 of the Rules, as indicated by the entry "r 1 Act No. 14, 2025, s 33". The precise content of that amendment is not specified in the source, but it appears to be a technical change to the title of the Rules, possibly to update a reference or citation format. No other rules were amended by that Act.

Thus, as at the effective date of the source (1 August 2025), the Rules had been amended once. The operative provisions (rules 2 to 18) remain in their original form. The amendment history is short because the Rules are relatively new (less than three years old at the date of the source). Practitioners should verify whether any further amendments have occurred after 1 August 2025 by checking the Northern Territory legislation register. The endnotes also list the key to abbreviations used in the endnotes, which is standard for Northern Territory subordinate legislation.

The fact that the amendment was made by an omnibus Attorney General Legislation Amendment Act suggests that it was part of a broader tidying up of various pieces of subordinate legislation. There is no indication of any policy change to the rules. For practical purposes, the amendment history means that when citing the Rules, the correct version is the one as in force on 1 August 2025, which includes the amended rule 1. Any earlier version would have a different title provision.

The source instrument, being the text of the Local Court (Surrogacy) Rules 2022 as in force at 1 August 2025, contains no references to any litigation. It does not cite any cases, mention any court decisions interpreting the Rules, or provide any guidance on how the Rules have been applied in practice. This is typical for procedural rules, which are legislative instruments rather than judgments.

The Rules have been in force since 20 December 2022, so it is possible that applications for parentage orders have been made under them in the Northern Territory Local Court. However, no reported decisions are included in the source. The Northern Territory is a small jurisdiction, and surrogacy proceedings may be relatively rare. Any judgments that exist would likely be unpublished or only briefly summarised. The absence of litigation history in the source does not mean the Rules have never been litigated; it means the Rules themselves do not document case law.

The duty of full and frank disclosure (rule 11) and the detailed affidavit requirements are fertile ground for disputes about whether disclosure was adequate. If a parentage order is challenged after being made, the court may need to examine whether the Rules were followed. Similarly, if an application for revocation is made under section 40 of the Surrogacy Act 2022 (the Rules support that process), the court may need to decide whether the original proceedings complied with the Rules.

Because the Rules are procedural, any litigation would typically be about whether a step was taken properly. For example, a dispute could arise about whether service was effected personally within the meaning of rule 9(1), or whether an affidavit contained sufficient particularity to satisfy rule 13(i) regarding payments. However, without reported cases, practitioners must rely on the plain text of the Rules and general principles of procedural law.

It is notable that the Rules themselves contain no provision for appeals from the Local Court to a higher court. That would be governed by the Local Court Act 2015 and other legislation, not these Rules. The litigation history therefore would also involve appeals to the Supreme Court of the Northern Territory, but again the source is silent.

In sum, the Rules have been in force for over two and a half years with no recorded litigation within the instrument itself. Practitioners should treat the Rules as untested in court and proceed with caution, especially on the duty of full and frank disclosure and the personal service requirement.

Several provisions in the Rules are likely to catch out unwary practitioners or parties.

First, personal service is mandatory unless the court orders otherwise (rule 9(1)). In an era where electronic service is common in civil litigation, the requirement to serve documents personally under the Surrogacy Act and these Rules is a significant burden. It means the applicant must arrange for a process server or some other person to physically hand documents to each person required to be served. This includes the surrogate mother, any other birth parent, and any other party to the surrogacy arrangement. If the surrogate mother lives interstate or overseas, personal service may be difficult or impossible. An application for an order for substituted service must be made promptly.

Second, the affidavit of service must be filed no later than 7 days before the first pre-hearing conference (rule 9(3)). Because the pre-hearing conference must be held within 14 days of filing (rule 10(2)), this means the affidavit of service must be filed within roughly 7 days of filing the application. That is a very tight timeframe, especially if service is difficult. If the affidavit is late, the conference may be adjourned or the application may be delayed.

Third, the duty of full and frank disclosure (rule 11) applies to all parties, not just the applicant. A surrogate mother who files an affidavit must also disclose anything relevant that might oppose the making of the parentage order. If she has any concerns about the intended parents or the arrangement, she must bring them to the court's attention. Failure to do so could later be used as grounds to revoke the order.

Fourth, the rules on payments (rule 13(i) and (j)) require disclosure of whether any payment, reward or other material benefit was offered to or received by any person for entering into the surrogacy arrangement, relinquishing custody, or consenting to the parentage order. Even payments that the parties consider reasonable costs must be disclosed. The Rules do not define "reasonable costs"; that is left to the Surrogacy Act 2022. If a party inadvertently fails to disclose a payment that the court later considers not to be a reasonable cost, the application could be dismissed or the order revoked.

Fifth, if there are two intended parents but only one applicant, the affidavit must explain the reason (rule 13(g) and note). Under section 26(3) of the Surrogacy Act 2022, this is only allowed in limited circumstances, such as the intended parents no longer being partners. The affidavit must provide those grounds, and if the court finds the reason insufficient, the application may be defective.

Sixth, the pre-hearing conference is informal but mandatory. Rule 10(4) requires each party to attend in person or by a legal practitioner. If a party attends by lawyer but does not give instructions, they risk the court making directions without their input. The conference is not a hearing on the merits, but the court may give directions that bind the parties.

Seventh, the court may dispense with the consent of a person under section 32(3) or (4) of the Surrogacy Act 2022. If the court does so, that person's affidavit is not required (rule 12(3)). However, if the party seeking dispensation does not file a separate application or does not provide sufficient evidence, the court may not dispense, and the application will be incomplete.

Eighth, the Rules do not provide for electronic filing or communication. Although the Local Court may have electronic filing generally, these Rules do not mention it. Practitioners should confirm with the Registry whether electronic service is accepted, because rule 9(1) expressly requires personal service unless the court orders otherwise. There is no provision for service by email or post.

Ninth, the definition of "other party to the surrogacy arrangement" (rule 12(1)(d)) is broad. It could include a surrogacy agency, a known egg or sperm donor, or even a lawyer who arranged the contract. If such a person exists, they must provide an affidavit. Identifying all parties to the arrangement and obtaining their affidavits may be challenging.

Tenth, the approved forms are not included in the Rules themselves. Rule 8 says the application, response, affidavit of service, and notice to the Registrar must be in a form approved by the Chief Judge. Practitioners must obtain these forms from the Local Court. Using an unapproved form may result in the document being rejected.

Eleventh, the Rules apply to any proceeding under the Surrogacy Act 2022 (rule 4). This includes not just parentage orders but also any other applications that may be made under that Act, such as applications for declarations or orders about surrogacy arrangements.

Finally, rule 5 gives the court power to adopt procedures from the Local Court (Civil Jurisdiction) Rules 1998, but only where not prescribed. If a practitioner relies on those civil rules without checking whether these surrogacy rules cover the same ground, they may inadvertently use a procedure that is inconsistent.

Compliance with the Local Court (Surrogacy) Rules 2022 requires careful attention to timing, content, and service. Below is a step by step guide for each type of proceeding.

For an application for a parentage order (Part 3):

1. Determine whether you meet the requirements to apply under the Surrogacy Act 2022, including that you are an intended parent and that the surrogacy arrangement meets the Act's requirements. Obtain legal advice early.

2. Prepare the application using the form approved by the Chief Judge (rule 8(a)). Check with the Local Court Registry for the current form.

3. Prepare your affidavit as an applicant. It must depose all matters listed in rule 13: the child's location and residence, proposed names, each applicant's name, date of birth, place of birth, residence, Australian citizenship or permanent residency, relationship status (if joint applicants), reasons for the surrogacy, disclosure of any payments beyond reasonable costs, details of any children (including deceased children), consent to the order, grounds for any dispensation of consent sought, and any other relevant matters. If you are a joint applicant, you may rely on the other applicant's affidavit for facts deposed there (rule 13(2)), but it is safer to each file an affidavit.

4. Obtain an affidavit from the surrogate mother. It must include her name, date of birth, place of birth, residence, citizenship, her consent to the parentage order, details of her partner (if any) and whether that partner is a birth parent, and any other relevant matters (rule 14). If she has a partner who is a birth parent, that person must also provide an affidavit.

5. Obtain an affidavit from any other birth parent of the child (such as the surrogate's partner if they are a biological parent) and any other party to the surrogacy arrangement (rule 15). Each such affidavit must include the person's name, date of birth, consent to the order, and any other relevant matters.

6. If the surrogate mother or another person whose consent is required refuses to consent, you may need to apply to the court to dispense with consent under section 32(3) or (4) of the Surrogacy Act 2022. If the court dispenses, you do not need that person's affidavit (rule 12(3)). However, you should file evidence supporting the grounds for dispensation in the affidavit (rule 13(m)).

7. File the application and all supporting affidavits with the Local Court. The application is taken to be made on the date of filing (rule 7). On filing, the registrar will fix a date for a pre-hearing conference (rule 10(1)) and return a sealed copy of the application.

8. Serve all documents (application and supporting affidavits) personally on each person who must be served under section 26(5) of the Surrogacy Act 2022. Those persons include the surrogate mother, any other birth parent, and any other party to the surrogacy arrangement. Service must be personal unless the court orders otherwise (rule 9(1)). If personal service is not possible, apply to the court for an order for substituted service.

9. Prepare an affidavit of service for each document served. This affidavit must depose the nature or identity of the document, who served it, and the time, date and other particulars constituting service (rule 9(4)). File the affidavit of service no later than 7 days before the first pre-hearing conference (rule 9(3)).

10. Attend the pre-hearing conference. The date must be no later than 14 days after filing (or as soon as practicable after that period). You must attend in person or by a legal practitioner (rule 10(4)). The conference is informal. The court may give directions, including about appointing a legal practitioner for the child, filing additional evidence, or fixing a hearing date (rule 10(5)). Be prepared to discuss the progress of the case and any issues.

11. Throughout the process, comply with the duty of full and frank disclosure (rule 11). You must disclose all matters relevant to the making of the parentage order, even those that do not support it. If any new relevant information arises after filing, notify the court and the other parties promptly.

12. If the court requires additional evidence (rule 10(5)(b)), file it as directed. At the hearing, the court will consider whether to make the parentage order.

For an application for revocation of a parentage order (Part 4):

1. Prepare the application using the approved form (rule 8(a)).

2. Prepare an affidavit. It must include a copy of the parentage order, the reasons for revocation, and any other relevant matters (rule 16(2)).

3. File the application and affidavit. The registrar will fix a pre-hearing conference.

4. Serve the application and supporting documents personally on the persons specified in section 40(3) of the Surrogacy Act 2022. File an affidavit of service no later than 7 days before the first pre-hearing conference (rule 9(3)).

5. Attend the pre-hearing conference as above.

If you are a respondent opposing revocation:

1. File a response in the approved form (rule 17) as soon as possible.

2. Prepare and file an affidavit in support of the response as directed by the court, and no later than 14 days before the day fixed for the hearing (rule 18). The affidavit must depose the reasons for opposing the revocation and any other relevant matters.

3. Attend the pre-hearing conference and comply with disclosure obligations.

General compliance tips:

• Contact the Local Court Registry early to obtain the approved forms and confirm deadlines.
• Keep detailed records of all communications and payments related to the surrogacy arrangement to satisfy the disclosure requirements.
• If you are uncertain about any requirement, seek legal advice. The court has power to dispense with compliance (rule 6), but you must apply for that dispensation rather than assume it.
• Monitor any amendments to the Rules after 1 August 2025, as the instrument may have been further amended.
• Remember that these Rules apply only to the Northern Territory Local Court. If you are dealing with a surrogacy matter in another jurisdiction, different rules apply.