About Brendan Hanks

Practice manager at Kate Austin Family Lawyers

Entries by Brendan Hanks

Can Lawyers practice in all states in Australia

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Can Australian Lawyers practice in every state?

 

In short, yes, an Australian lawyer can generally practice in every state and territory, but it’s not always an automatic process and there are important regulatory requirements they must follow.

This is made possible by a legal framework based on the principle of mutual recognition.

 

The Mutual Recognition Principle

The Mutual Recognition Act is the key piece of federal legislation that allows a person who is registered for an occupation in one state or territory to be entitled to be registered for the equivalent occupation in another, after notifying the local regulatory authority.

 

For lawyers, this means:

  • Admission to Practice: Once a person is admitted to the legal profession by the Supreme Court of one Australian state or territory, they are considered an “Australian lawyer.” This admission is recognised in all other jurisdictions under mutual recognition laws. This removes the need for a separate admission process in each state.
  • Practising Certificates: While admission is national, a lawyer still needs a practising certificate to actually provide legal services. The practicing certificate is issued by the relevant regulatory body in a specific jurisdiction (e.g., the Law Society of South Australia or the Law Society of New South Wales). However, a lawyer with a current practising certificate from one state can generally practice in other states without obtaining a new one.

The Uniform Law Scheme

 

To further streamline this process, the Legal Profession Uniform Law was introduced. This is a standard set of laws and rules that has been adopted by New South Wales, Victoria, and Western Australia. Its goal is to create a single, national regulatory system for legal practice in these jurisdictions.

 

 

For lawyers practising in these “Uniform Law” states, the process is even more straightforward. They are subject to the same professional conduct rules, trust account requirements, and continuing professional development obligations. This makes practising across the borders of NSW, Vic, Qld and WA largely seamless.

What Lawyers Must Do to Practice Interstate

Even with mutual recognition and the Uniform Law, a lawyer cannot simply start practising in a new state without taking any action. They must:

  1. Give Notice: Lawyers must typically notify the local law society or regulatory body in the new jurisdiction of their intention to practice there. This is a straightforward administrative step.
  2. Comply with Local Rules: While the core laws are similar, there can be some minor local rules, procedural differences, and court practices that a lawyer must be aware of and comply with.
  3. Hold Appropriate Insurance: Lawyers must ensure they have professional indemnity insurance that covers their legal work in the new jurisdiction.

In summary, Australia has a highly integrated system for legal practice. A lawyer’s admission is nationally recognised, and with a current practising certificate and a simple notice to the local body, they can legally provide services in any state or territory. This reflects a commitment to a single Australian legal profession, despite the jurisdictional divisions.

Is Family law the same everywhere in Australia

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Is Family law the same everywhere in Australia

 

Federal Law (Uniformity across Australia)

 

The vast majority of family law matters are governed by the Family Law Act 1975 (Cth), which is a federal law. This means that for issues such as divorce, parenting arrangements (including custody and care of children), and the division of property and finances for married couples and de facto relationships, the same laws and principles apply throughout Australia. Consent Orders are the same in every Australian state.

 

The Federal Circuit and Family Court of Australia (FCFCA) is the national court that hears these matters, ensuring consistency in the application of the law across all states and territories.

State and Territory Differences (Jurisdictional Variations)

 

There are, however, a few key areas where state and territory laws come into play and create differences:

  1. Western Australia: This is the most significant exception. Western Australia has not referred its powers for family law matters to the Commonwealth government in the same way as the other states. As a result, it has its own state-based court, the Family Court of Western Australia, which handles both state and federal family law matters. While the laws it applies are mainly consistent with the federal Family Law Act 1975, there are some procedural and legislative differences. For example, there can be differences in how superannuation is treated in property settlements for de facto couples.
  2. Child Protection: Child protection is primarily a state and territory responsibility. Each jurisdiction has its own legislation and agencies that are responsible for the welfare and safety of children. For example, a child protection matter in New South Wales is governed by the Children and Young Persons (Care and Protection) Act 1998 (NSW), which is different from the legislation in other states. The federal family courts may need to interact with these state child protection systems in cases where there are allegations of abuse or neglect.
  3. Domestic Violence: While family violence is a key consideration in federal family law matters (especially in parenting cases), the criminal law and the issuing of family violence protection orders (such as Apprehended Violence Orders) are managed at the state and territory level. The name and specific rules for these orders differ in each jurisdiction.
  4. Adoption and Surrogacy: Laws regarding adoption and surrogacy are also governed by state and territory legislation, not federal law. This means that the legal requirements and processes for these matters can vary significantly from one state to another.

In summary, while the core principles of family law for divorce and property settlement are consistent across Australia due to the federal Family Law Act 1975, you will find differences in Western Australia and in other areas of law that intersect with family matters, such as child protection, domestic violence, and adoption.

How long does a joint Divorce take

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How long does a joint Divorce take?

The total time required to obtain a joint divorce in Australia can be divided into two main phases: the preparation phase and the court processing phase.

 

1. The Preparation Phase (Before Filing)

 

  • 12-Month Separation Period: This is the most crucial requirement and the most time-consuming part. You and your spouse must have been separated for a continuous period of at least 12 months and 1 day before you can apply. This period can include “separated under one roof.”
  • Document Gathering: You’ll need to locate your official marriage certificate and any other required documents (e.g., citizenship papers). If you’re married for less than two years, you must also obtain a certificate from a marriage counselor. This can take a few days or weeks, depending on your circumstances.

Total time for this phase: At a minimum, 12 months and 1 day.

 

2. The Court Processing Phase (After Filing)

Once you have completed the 12-month separation period and have your documents ready, the court process begins. A joint application is the fastest way to get a divorce through the court system because both parties are cooperative, and there is no need for formal service of documents.

  • Filing the Application: We will apply for your divorce online through the Commonwealth Courts Portal.
  • Waiting for a Hearing Date: Once the application is submitted and the filing fee is paid, the court will set a hearing date. This typically takes 6 to 8 weeks from the date of Filing, though it can vary depending on the court’s workload.
  • The Divorce Hearing: For a joint application, neither party is required to attend court if there are no children under 18. If there are children under 18, the court may still not require attendance; however, it’s essential to check the court’s directions for your specific case. The court reviews the application to ensure all legal requirements are met.
  • The Divorce Order is Granted: If the court is satisfied, it will grant the divorce order at the hearing.
  • The Finalisation Period: The divorce order does not become final immediately. There is a mandatory waiting period of one month and one day after the order is made. This is to allow for any appeals or to address any issues that may arise.

Total time for this phase: Approximately 3 to 4 months from the date of filing the application.

 

Summary of Total Timeline

 

Step Timeframe Notes
Separation Period 12 months and 1 day This is a mandatory pre-condition to filing.
Filing to Hearing 6 – 8 weeks Can vary based on court location and workload.
Divorce Order Finalisation 1 month and 1 day A mandatory waiting period after the hearing.
Total Time Approx. 15-16 months This is the minimum time from the date of separation to the divorce being finalised.

In short, the quickest possible time to get a joint divorce is about 15 to 16 months from the date you and your spouse separated. This assumes a smooth process with a joint application, no errors in the paperwork, and no unexpected issues.

Australian Divorce process

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Here are the key rules and requirements for getting a joint divorce in Australia:

 

1. The Grounds for Divorce (Irretrievable Breakdown)

 

  • The only ground for divorce in Australia is the “irretrievable breakdown of the marriage.”
  • To prove this, you must demonstrate to the court that you and your spouse have been separated for a continuous period of at least 12 months and 1 day immediately before applying for a divorce.

 

2. Separation Under One Roof

  • It is possible to be separated while still living in the same home. This is often referred to as “separated under one roof.”
  • If you are applying for a divorce and have been separated under one roof for any part of the 12 months, you must file a separate affidavit with your application.
  • This Affidavit needs to provide evidence to the court that you have genuinely separated, such as changes to sleeping arrangements, a division of household duties, separate finances, and a lack of shared social life or sexual relations.

 

3. Jurisdiction (Who Can Apply)

 

At least one of you must meet the following residency requirements:

  • Be an Australian citizen (by birth, descent, or grant of citizenship).
  • Live in Australia and regard Australia as your home.
  • Have lived in Australia for at least 12 months immediately preceding the filing of the application.

 

4. Children of the Marriage (Under 18)

  • If you have children under the age of 18, the court will only grant the divorce if it is satisfied that “suitable arrangements” have been made for them.
  • This does not mean you need a formal court order for parenting arrangements. A parenting plan or informal agreement between the parents is often sufficient.
  • The application form requires you to provide details about how you are managing the children’s living arrangements, financial support, education, health, and their relationship with both parents.

 

5. Joint Application Specifics

 

  • No Service Required: The most significant advantage of a joint application is that there is no need to “serve” the divorce papers on the other party, which can reduce conflict and legal costs.
  • Both Parties Sign: Both spouses must sign the application form and the Affidavit for eFiling (Divorce). They can different times and in front of other witnesses (such as a Justice of the Peace or a lawyer).
  • No Court Attendance (Usually): If you file a joint application and there are no children under 18, you are generally not required to attend a court hearing. The court will review the documents and decide in your absence. If there are children under 18, the court may require one or both parties to attend a short hearing.

 

6. Marriage of Less Than Two Years

 

  • If you have been married for less than two years, you are required to attend marriage counselling and obtain a certificate from a family counsellor before you can apply for a divorce.
  • The court may waive this requirement in exceptional circumstances, such as cases involving family violence. You would need to file an affidavit explaining why counselling was not possible.

 

The Process

  1. Meet the Requirements: Confirm you meet all the eligibility criteria, especially the 12-month separation period.
  2. Gather Documents: You will need your official marriage certificate (not a ceremonial one) and any other relevant documents, such as citizenship or visa information. If the marriage certificate is not in English, you must also provide a certified translation.
  3. Complete the Online Application: The application is filed online through the Commonwealth Courts Portal.
  4. Sign and File: Both parties sign the documents and file them with the court, along with the required filing fee (or an application for a fee reduction if eligible).
  5. Court Review and Hearing: The court reviews the application. A hearing date is set (usually 2-3 months after filing).
  6. Finalisation: If the court is satisfied, the divorce order will be made. The divorce becomes final one month and one day after the order is granted.

Can Consent Orders be overturned?

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Can a Family court change a Consent Order?

Yes, a Family Court can change or “set aside” a Consent Order, but this is not a straightforward process. A Consent Order is a final, legally binding court order, and the court’s general position is that there should be finality in legal proceedings. They will only intervene in particular and limited circumstances.

The power to set aside or vary a Consent Order is found in the Family Law Act 1975 (Cth). The relevant sections are:

  • Section 79A for property and financial matters.
  •  Section 65DA for parenting matters (though the legal principles are similar for all parenting orders, not just consent orders).

Here are the primary grounds on which a court may set aside or vary a Consent Order:

For Property and Financial Orders (under Section 79A)

The court must be satisfied that a “miscarriage of justice” has occurred. This can happen due to several reasons, including:

  • Fraud: This is a key ground. For example, if one party intentionally hid or failed to disclose a significant asset or source of income, and the court is satisfied that the non-disclosure would have resulted in a different, more just outcome.
  • Duress: If a party was coerced or pressured into signing the orders against their will.
  • Suppression of Evidence or Giving False Evidence: This is similar to fraud and relates to a failure to provide full and frank disclosure of all financial information.
  • Exceptional Circumstances and Hardship: The court may set aside the orders if extraordinary circumstances have arisen since the orders were made that would cause “hardship” to the applicant or a child of the marriage. This is a very high bar and requires a significant and unforeseeable change, such as a severe illness, a massive unexpected inheritance, or a lottery win.

For Parenting Orders

The court is even more reluctant to change final parenting orders because of the principle that it is in a child’s best interests for there to be finality and stability in their living arrangements.

The key legal principle here is often referred to as the “Rice & Asplund” rule. This means the court will not re-hear a case unless the applicant can demonstrate there has been a “significant change in circumstances” since the original orders were made.

Examples of a significant change in circumstances include:

  • A parent wanting to relocate with the children to another city or state.
  • A child’s or a parent’s health has undergone significant changes.
  • There have been new, serious allegations of abuse or family violence.
  • The current living arrangements are no longer practicable or pose a risk to the child.
  • The child’s wishes have changed, and they are of an age and maturity where their views should be considered.

What Is the Process?

If both parties agree.

If both parties agree to change a Consent Order, they can simply file a new Application for Consent Orders that sets out the new terms of their agreement. The court will review the new orders and, if they are considered just and equitable (for financial matters) and in the child’s best interests (for parenting matters), will make the new orders.

If one party does not agree

If one party does not agree to the change, the other party must file an Initiating Application with the court and prove that the grounds for setting aside the orders exist. It will be a lengthy and expensive process and should only be undertaken after careful legal advice.

Can a Family court change a proposed consent Order

Yes, a Family Court can change a proposed Consent Order before it’s approved and sealed. The court’s primary role is to ensure that orders are just and equitable in financial matters and in the best interests of the child in parenting matters.

If a proposed Consent Order doesn’t meet these legal requirements, the court will not approve it as is. Instead, they will issue a requisition, a formal request for the parties to provide additional information or to amend the orders.

Change Consent Orders

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Superannuation Splitting with Consent Orders

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Divorce v Consent Orders

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The difference between Divorce v Consent Orders

Yes, in Australia, it is absolutely possible to be divorced (meaning your divorce order, which is equivalent to a “decree absolute” in other jurisdictions, has become final) before you apply for Consent Orders.

Here’s a breakdown of the key points:

  • Divorce vs. Property/Parenting Matters: A divorce (or divorce order) is simply the legal ending of the marriage. It doesn’t automatically resolve financial matters (property settlement, spousal maintenance) or parenting arrangements for children. These are separate issues.
  • Time Limits for Consent Orders (Financial):
    • If you are married, you have 12 months from the date your divorce order becomes final to apply for financial consent orders or commence proceedings in court for a property settlement.
    • If you were in a de facto relationship, you generally have 24 months from the date of separation to file for financial consent orders.
    • You can apply for financial consent orders before you are divorced, even immediately after separation.
  • Parenting Consent Orders: There are generally no specific time limits for applying for parenting consent orders after separation.
  • Practicality: Many people choose to finalize their financial and parenting arrangements (through Consent Orders or a Binding Financial Agreement) before applying for divorce. This is often because resolving these practical matters is more pressing. However, it’s also common to apply for Consent Orders after the divorce is final, especially if you have a clear agreement.
  • No Fault Divorce: Australia has a “no-fault” divorce system, meaning the court doesn’t consider why your marriage ended. The only requirement for divorce is that you’ve been separated for 12 months and there’s no reasonable likelihood of getting back together.

In summary, while you can get divorced before sorting out your financial and parenting matters, you don’t have to. Many people find it more practical to sort out the practical arrangements first. Just be mindful of the 12-month time limit for financial matters after your divorce becomes final.

It’s always recommended to seek legal advice from a family lawyer to understand your specific situation and ensure you meet all requirements and deadlines.

How does the best interests of the child affect Family Court matters.

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Best interests of the child

 

When Australian courts, including the Federal Circuit and Family Court of Australia (FCFCOA), are asked to make Parenting Orders by consent (i.e., Consent Orders that deal with arrangements for children), the paramount consideration is the best interests of the child.

This principle is enshrined in Section 60CA of the Family Law Act 1975 (Cth). It means that all decisions about parenting arrangements must prioritise the child’s well-being and development above all else, including the wishes or interests of the parents.

Even when parents agree on arrangements and submit them as proposed Consent Orders, the Court (usually a Registrar in the first instance) must independently review these proposed orders and be satisfied that they are, in fact, in the child’s best interests before they can be made into legally binding orders.

To determine what is in a child’s best interests, the Family Law Act 1975, specifically Section 60CC, sets out a list of factors that the Court must consider. These are categorised into “primary considerations” and “additional considerations.”

Primary Considerations (Section 60CC(2)):

  1. The benefit to the child of having a meaningful relationship with both of their parents: The law recognises that it is generally in a child’s best interests to have both parents involved in their lives, provided it is safe to do so.

  2. The need to protect the child from any physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence: This factor is given greater weight than the benefit of a meaningful relationship if there is a conflict between the two. The safety of the child is paramount.

Additional Considerations (Section 60CC(3)):

These are numerous and allow the Court to take a holistic view of the child’s circumstances. They include:

  • The views expressed by the child and any factors (which may include the child’s maturity and/or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

  • The nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative of the child).

  • The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from:

    • Either of his or her parents; or

    • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

  • The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

  • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions of the child and either of the child’s parents) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

  • If the child is an Aboriginal child or a Torres Strait Islander child:

    • The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    • The likely impact any proposed parenting order under this Part will have on that right.

  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

  • Any family violence involving the child or a member of the child’s family.

  • If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the circumstances in which the order was made, the evidence (if any) on which the order was based, and any other relevant matter.

  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

  • Any other fact or circumstance that the court thinks is relevant.

How it Applies to Consent Orders:

When parents submit an Application for Consent Orders for parenting arrangements, they are essentially stating that they believe these arrangements are in their child’s best interests. The Court reviews the application and the proposed orders against these legislative factors.

  • The Court will consider the information provided by the parents in their application, which should implicitly or explicitly address how the proposed arrangements meet the child’s needs in light of these factors.

  • If the Court has concerns that the proposed orders are not in the child’s best interests (e.g., if they seem to expose a child to risk, or don’t adequately consider the child’s relationship with both parents where safe), it may:

    • Ask for more information.

    • Suggest changes to the proposed orders.

    • In some cases, refuse to make the orders as proposed and list the matter for a short hearing or direct parents to family dispute resolution.

Therefore, when parents are negotiating and drafting proposed Consent Orders for their children, they should always frame their discussions and the resulting agreement around these “best interests” principles. This not only helps ensure the arrangements are genuinely good for their children but also increases the likelihood of the Court approving their agreement.