About Rachel Stubbs

Rachel Stubbs is the Principal of Kate Austin Family Lawyers, where she leads a practice dedicated to providing a more compassionate, efficient, and cost-effective alternative to the traditional adversarial legal system. With over 25 years of experience in family law, Rachel has transitioned her focus from courtroom litigation to specializing in Consent Orders and amicable property settlements.

Professional Background & Philosophy
Rachel’s career is defined by a commitment to minimizing the emotional and financial toll of separation, particularly on children. Before establishing her practice in Brisbane, she founded and led a successful multi-office firm in New South Wales. Despite that success, she became a vocal critic of the traditional family law system, believing its "winner-take-all" nature often encourages bitterness rather than resolution.

Specialist Accreditation (Family Law): Law Society of NSW (2007) and Law Society of QLD (2017).

Independent Children’s Lawyer (ICL): Trained through the National Training Program to represent the best interests of children in complex cases.

Graduate Diploma of Family Dispute Resolution: Focused on non-litigious mediation and resolution strategies.

High Court Registration: Registered to practice in any Federal Court in Australia.

Personal Interests
Outside of the office, Rachel is an accomplished endurance athlete. She is a competitive triathlete and cyclist, regularly participating in IRONMAN 70.3 events. Her determination in the legal field is mirrored in her personal life; she has long-held aspirations to cycle across America, fueled by an adventurous spirit and a drive for personal growth.

Entries by Rachel Stubbs

Can Lawyers practice in all states in Australia

/in ,

Can Lawyers practice in all states in Australia?

In short, yes, an Australian lawyer can Lawyers practice in all states in Australia, 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.  Lawyers practice in all states in Australia if they undertake the following steps 

  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.

Can Lawyers practice in all states in Australia

 

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.

FAQ - Can Lawyers practice in all states in Australia

1. Can a family lawyer based in one state legally represent me in another state?
Yes, Australian family lawyers can represent clients across all states and territories. Family law in Australia is governed by federal legislation—primarily the Family Law Act 1975 (Cth)—which applies uniformly across New South Wales, Victoria, Queensland, South Australia, Tasmania, the ACT, and the Northern Territory. Because admission to practice law is nationally recognised, a qualified family lawyer can draft documents and file applications in the Federal Circuit and Family Court of Australia regardless of where you or your ex-partner live. Learn more about working with interstate practitioners at Can Lawyers Practice in All States.
2. Are there any state-based exceptions to national family law practice?
Western Australia is the primary exception to national family law uniformity rules. Unlike other states, Western Australia did not refer its family law powers to the Commonwealth and operates its own dedicated Family Court of Western Australia under state legislation for de facto couples. While federal law still governs married couples in WA, de facto property splits follow local state statutes. Aside from WA de facto matters, the family legal rules for divorce, property settlements, and parenting orders remain identical across all other Australian jurisdictions. Explore regional legal guidelines at Can Lawyers Practice in All States.
No, you do not need to hire a local firm physically located in your town or city. Because the Federal Circuit and Family Court of Australia processes applications through a single online portal, lawyers manage consent order filings completely remotely. An accredited family law specialist in Brisbane or Sydney can draft and file legally binding agreements for couples living in Adelaide, Melbourne, or regional areas without anyone attending a court hearing. This allows you to choose fixed-fee specialists regardless of location. Read about national remote representation at Can Lawyers Practice in All States.
Firms operating nationwide often use streamlined, client-focused processes to deliver fixed-fee services and avoid hourly invoicing. By handling Consent Orders online, we have  removed expenses associated with  court appearances and in-person office visits. This is very labour-intensive, as we sell time; clients must pay for time. You will receive the same legally binding court seal without paying location-based premiums charged by local suburban law firms. This national model keeps pricing transparent and affordable while ensuring firms remain in compliance with federal standards. Check out fixed-fee national services at Can Lawyers Practice in All States.
5. How do lawyers handle state-specific issues like property title transfers?
While family law itself is federal, transferring real estate titles involves local state land titles offices (such as Land NSW or VicRoads/State Revenue Victoria). Property Law is state-based legislation. Experienced l family lawyers draft court-sealed Consent Orders that incorporate precise statutory clauses recognised by each state’s revenue office. These specific clauses ensure you receive full stamp duty exemptions when executing local land transfers. Working with a lawyer familiar with cross-border property transactions ensures your federal court orders smoothly satisfy state tax requirements. Discover how state title transfers work under national orders at Can Lawyers Practice in All States.


LET'S TALK



Instant Quote


Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel 

Is Family law the same everywhere in Australia

/in ,

Understanding Family Law in Australia: Is it the Same Everywhere?

 

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. In short, yes, family law is the same everywhere in Australia.

The Federal Circuit and Family Court of Australia (FCFCA) is the national court that hears these family law matters, ensuring consistency in the application of the law across all states and territories. Family law practice has evolved to address complex family law matters, including those involving family violence and culturally diverse backgrounds, and to support effective decision making in the best interests of children.

Legal aid and financial support services are available to assist parties involved in family law matters, ensuring access to justice regardless of financial circumstances.

 

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 child abuse or neglect., and such allegations are taken very seriously.

Decisions about a child’s living arrangements, major long term issues (such as cultural upbringing and child’s education), and parental responsibility are made with the child’s best interests as the primary consideration. These decisions are of a long term nature and must take into account the particular circumstances of each family. Parents are expected to consult and cooperate on these major long term issues to ensure the child’s welfare is protected. Regardless of which parent the child lives with, both parents are responsible for supporting the child financially. Child support is administered through government programs, ensuring that the child is supported financially after separation.

  1. 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.

  2. 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.

  3. Support services are available to assist separated families, including mediation and counselling. Children’s contact services are also available to help maintain relationships between children and family members in separated families, particularly when safety is a concern.

When the court becomes involved in family law in Australia, family reports are often used to assist the court in making informed decisions about the welfare of children.

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 Family law the same everywhere in Australia, apart from these instances.

 

Family Violence and Support

Family violence is a critical concern within Australian family law, and the Family Law Act 1975 places significant emphasis on protecting families and children from harm. The family court system, including the Federal Circuit and Family Court of Australia, has developed a range of initiatives to address family violence and ensure the safety of those affected.

One of the key developments is the Lighthouse initiative, which screens family law matters for risks related to family violence at an early stage. This allows the court to identify cases where safety is a paramount consideration and to tailor the management of those cases accordingly. Family dispute resolution practitioners are specially trained to recognize and respond to signs of family violence, ensuring that the dispute resolution process is safe and supportive for all parties involved.

The family law system has also introduced harmful proceedings orders, which are designed to prevent perpetrators from misusing the court process to continue abusive behavior. These orders are an important tool in protecting victims and ensuring that the family court is not used as a means of further harm. In addition, the Family Law Amendment Act has expanded the definition of family violence to include economic and financial abuse, recognizing the wide-ranging impact that family violence can have on property disputes and financial agreements.

Family report writers and legal practitioners play a vital role in identifying family violence and advising the court on the best interests of the child. Their assessments help the court make informed decisions about parenting plans, parenting orders, and the child’s living arrangements, always prioritizing the child’s safety and well-being. The family court of Australia has also adopted trauma-informed practice, with judges and court staff receiving training to better support victims of family violence throughout the legal process.

Support services are widely available for those experiencing family violence, including counseling, advocacy, and financial assistance. The law society and the broader legal profession recognize the importance of providing specialized support, and many family law practitioners focus on assisting victims of family violence. The federal circuit and family court have also implemented measures such as video link hearings to reduce the risk of further abuse when attending court.

In parenting cases, the court’s paramount consideration is always the best interests of the child. The impact of family violence on a child’s safety, emotional well-being, and developmental needs is carefully considered when making parenting orders or approving a parenting plan. The court may also issue family violence orders to provide immediate protection and may require perpetrators to attend counseling or intervention programs.

Overall, the Australian family law system is committed to addressing family violence through a combination of legal protections, support services, and trauma-informed practice. By prioritizing the safety and well-being of victims and their children, the family court and legal practitioners work to prevent further abuse and foster healthier family relationships. If you or someone you know is experiencing family violence, support is available, and the family law system is equipped to help protect you and your family.

Property Settlements in Western Australia -

Yes, but your exact path to initiating a property settlement in another state depends on whether you were married or in a de facto relationship, as well as where your ex-partner lives.

If You Were Married

Property settlements for married couples are governed by federal law (Family Law Act 1975) across all Australian states and territories.

  • State Freedom: Living in Western Australia does not legally lock you into applying exclusively in WA if you file through the federal court system.
  • Filing in another State: If your ex-spouse lives in another state (e.g., New South Wales or Victoria) or if your joint real estate/assets are located there, you can file your property settlement application with the Federal Circuit and Family Court of Australia (FCFCOA) in that state’s registry.
  • Forum Convenience: If both you and your ex live in WA, the local court (Family Court of Western Australia) is the standard venue. If you file in an eastern state court without a clear geographical link, your ex-spouse can apply to have the case transferred back to Western Australia based on convenience and location of evidence.

If You Were in a De Facto Relationship

De facto property laws in Australia have a unique jurisdictional split:

  • Rest of Australia: All other states and territories refer their de facto property powers to the Commonwealth (governed by the FCFCOA).
  • Western Australia: WA did not refer its de facto property powers to the federal government. De facto property division in WA is strictly governed by state law (Family Court Act 1997 (WA)) through the Family Court of WA.
  • The Catch: If your relationship was a de facto relationship based primarily in WA, you generally cannot file for a de facto property settlement in another Australian state unless you satisfy the federal court’s strict geographic connection requirements (e.g., living in that other state for a required period after separation).

Key Requirements & Constraints

Factor

What You Need to Know

Strict Time Limits

If married, you must apply for property settlement within 12 months of your divorce becoming final. If de facto, you have 2 years from the date of separation.

Asset Location

Property orders made by any Australian family court (whether in WA or FCFCOA) apply to assets located anywhere in Australia (e.g., houses, bank accounts, superannuation in QLD or NSW).

Consent Orders

If you and your ex-partner agree on how to split your assets, you can negotiate and file Application for Consent Orders without going through a trial, regardless of state boundaries.

FAQ - Understanding Family Law across Australia

1. Is family law applied the exact same way across all Australian states and territories?

The core principles of family law are uniform across most of Australia because the federal Family Law Act 1975 (Cth) governs divorce, property division, and parenting arrangements. The Federal Circuit and Family Court of Australia (FCFCOA) applies these federal rules consistently nationwide. However, Western Australia stands out as the major exception. WA operates its own Family Court of Western Australia under state legislation for de facto property disputes, introducing minor procedural and legal differences. For married couples and parenting matters, federal standards remain largely identical across the country.

Yes, Consent Orders carry the exact same legally binding authority across every Australian state and territory. Because the Federal Circuit and Family Court processes consent applications through a centralized national portal, an order granted in Queensland or New South Wales holds full legal weight in Victoria, South Australia, or the ACT. The court registrar reviews your application against federal statutory standards rather than local state-by-state guidelines. Once sealed, your Consent Orders provide enforceable protection nationwide without needing local state re-registration

While core property and parenting rules follow federal legislation, overlapping issues like child protection, domestic violence protection orders, adoption, and surrogacy fall under individual state and territory statutes. For instance, a domestic violence intervention order in Victoria follows different state processes than an Apprehended Violence Order (AVO) in New South Wales. Similarly, state child welfare departments handle local protection matters under their own state-specific acts. Federal family courts take these state-level protection orders into consideration when evaluating overall child safety and property splits

4. How does Western Australia differ when dividing de facto property assets?

Western Australia did not refer its constitutional powers over de facto financial matters to the Commonwealth, unlike all other states and territories. Consequently, the Family Court of Western Australia handles de facto property splits under state laws like the Family Court Act 1997 (WA) rather than federal statutes. This creates notable legal differences, particularly regarding how de facto partners split superannuation accounts. Despite these local statutory variations, the court still strives to achieve fair, equitable outcomes similar to national standards.

While the Family Law Act 1975 sets national rules for dividing property, individual state revenue offices handle property title transfers and stamp duty. Fortunately, state revenue authorities—such as Revenue NSW, State Revenue Office Victoria, or the ACT Revenue Office—grant stamp duty exemptions when you transfer real estate pursuant to a court-sealed Consent Order. Your lawyer includes specific statutory transfer clauses in your federal orders to satisfy local land titles registries. This intersection allows federal court orders to smoothly unlock local state tax concessions.


LET'S TALK



Instant Quote


Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel 

How long does a joint Divorce take

/in

How long does a Joint Divorce take to complete? 

How long does a joint Divorce take, 2-3 months from Filing the application with the Family Court 

Divorce applications must be filed in the Family Court of Australia

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.

Question : How long does a joint Divorce take

Answer: 15months from first separation date.

FAQ How long does a joint Divorce take?

1. How long does the court processing phase take for a joint divorce application?
Once you file a joint divorce application online via the Commonwealth Courts Portal, the court processing phase typically takes 3 to 4 months. After you file and pay the court fee, the Federal Circuit and Family Court of Australia assigns a listing or hearing date, usually set 6 to 8 weeks out depending on registry workloads. If all of the legal requirements are met, the court will grant the divorce order. The order then becomes legally final one month and one day after that hearing date.
2. Why is filing a joint divorce faster than filing a sole divorce application?
Filing an application together reduces your timeline because it eliminates the mandatory requirement to serve divorce papers on your ex-partner. In a sole application, you must formally serve your former spouse through a process server and file affidavits proving service. This can add weeks or months to the court date as well as costs. A joint application avoids this delay because both parties sign the divorce application and agreed on the details.
3. Do we need to attend the court hearing for a joint divorce?
In most cases, neither spouse needs to set foot in a courtroom for a joint divorce. When you file jointly, the court registrar reviews your paperwork in chambers without requiring your attendance, even if you have children under 18 years old. As long as your affidavits satisfy the procedural criteria and prove proper care arrangements exist for your children, the registrar grants the order electronically. This out-of-court review avoids unnecessary stress and legal expenses. Read more about hearing attendance rules at How Long Does a Joint Divorce Take.
4. What mandatory waiting period applies before filing for a joint divorce?
Before submitting your joint divorce application, Australian family law requires you and your spouse to be separated for a 12 month and 1 day separation period. The time starts when at least one partner decides the marriage is over and communicates that decision. You can count time spent separated under the same roof toward this requirement, provided you supply supporting affidavits. When you add the mandatory waiting period to court processing times, a joint divorce takes about 15 to 16 months total from separation. Explore separation requirements at How Long Does a Joint Divorce Take.
5. Does a joint divorce finalise your property and financial split?
No, a divorce only dissolves your legal marriage and does not divide your property, money, or superannuation. You must arrange property settlements and parenting arrangements separately, ideally through court-sealed Consent Orders. Importantly, your final divorce order triggers a 12-month statutory countdown. Once your divorce becomes final, you have exactly one year to file court proceedings for property division or spousal maintenance. Finalising property matters early helps you avoid missing this deadline.


LET'S TALK



Instant Quote


Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel 

Australian Divorce process

/in

Australian Divorce process – A breakdown in the steps 

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 Divorcing 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.

Summery 

The Australian Divorce process is very procedural must be submitted into the Australian Family Court in accordance with the Family Law Act Australian Divorce process

FAQs about the Australian Divorce process

1. How long do I have to be separated before filing for a divorce in Australia?
You must be separated for a minimum of 12 months and 1 day before you can submit a divorce application to the court. The legal clock starts as soon as at least one partner decides the marriage is over and communicates that decision to the other. Under Australian family law, you can also count time spent separated while living under the same roof, provided you supply supporting affidavits explaining the change in your domestic arrangements. If you briefly reconcile for less than 3 months, that trial period pauses your separation count without resetting it to zero. To learn more about meeting these legal requirements, visit Australian Divorce Process.
2. What is the difference between a sole and a joint divorce application?
A joint application occurs when both spouses complete, sign, and submit the divorce application together. This option removes the need to serve divorce paperwork on your ex-partner formally and usually means neither of you has to attend court. A sole application is filed by one partner independently. When filing solely, you must formally serve the sealed divorce papers on your ex-spouse and file proof of service with the court. Furthermore, if you file solely and have children under 18, you may be required to attend a court hearing. Explore how to choose the right path at Australian Divorce Process.
3. Does getting a divorce order automatically split our property and money?
No, a divorce order only dissolves your legal marriage and does not handle property divisions, superannuation splits, or child custody. You handle financial settlements and parenting arrangements separately, ideally through court-approved Consent Orders or a Binding Financial Agreement (BFA). Once your divorce order becomes final, a 12-month deadline begins. You must file court proceedings for property settlement or spousal maintenance within one year of your divorce taking effect. If you don’t contact our office and we will advise you on your next step. Finalising your financial matters early helps you avoid missing this legal window. Read more about coordinating your settlement at Australian Divorce Process.
4. When does a granted divorce order become legally final in Australia?
Your divorce does not become final on the day of your court hearing or registry approval. When the Federal Circuit and Family Court grants your divorce, it issues a divorce order that takes effect exactly one month and one day later. For instance, if the court grants your divorce order on March 15, your divorce becomes legally final on April 16. Neither spouse can legally remarry until that official finalisation date passes. Once final, you can download your official Divorce Certificate directly from the Commonwealth Courts Portal. See timeline breakdowns at Australian Divorce Process.
5. How do we apply for a divorce if we were married for less than two years?
If you apply for a divorce within two years of your marriage date, the court requires an extra step before accepting your application. You and your spouse must attend a counselling session with a qualified family counsellor to discuss reconciliation possibilities. After the session, the counsellor provides a signed certificate that you must attach to your court application. If your ex-partner refuses to attend counselling, or if special circumstances exist, such as family violence, you can apply for leave of the court to waive the requirement. Discover the guidelines for recent marriages at Australian Divorce Process.


LET'S TALK



Instant Quote


Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel 

Can Consent Orders be overturned?

/in ,

Can Consent Orders be overturned? 

Can Consent Orders be overturned, 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.

Parenting Orders

The court is even more reluctant to Consent Orders be overturned with 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

/in ,

Superannuation Splitting with Consent Orders

/in ,

Divorce v Consent Orders

/in , ,

The difference between Divorce v Consent Orders

FAQS - The difference between Divorce v Consent Orders

A divorce only dissolves your legal marriage contract. It changes your legal status from married to divorced, but it does not divide your property, split superannuation, or establish parenting schedules. Your financial relationship or obligations have not been finalised. Consent Orders, on the other hand, create a legally binding “clean break” agreement for your property, finances, and children. While a divorce closes your marriage, Consent Orders close your financial obligations and protect your future assets from late claims.
No, you do not need to wait for a divorce to get Consent Orders. You can apply for Consent Orders as soon as you separate, provided you and your former partner reach an agreement on property or parenting arrangements. Most family lawyers recommend formalising your property and parenting Consent Orders before or alongside your divorce application. Sorting out financial settlements early helps you avoid strict court time limits down the track.
The moment your divorce order becomes legally final, a 12-month time limit begins under Australian family law. You must commence finalising your property settlement via court-sealed Consent Orders or initiate court proceedings within one year of that final divorce date. If you miss this 12-month window, you must seek special permission from the court to proceed.
4. Can a divorce order protect my future assets or grant stamp duty exemptions?
No, a divorce order offers no protection for your assets and grants no tax concessions. Only court-sealed Consent Orders provide tax exemptions, such as stamp duty relief when transferring real estate, and capital gains tax rollover relief. Furthermore, Consent Orders prevent your ex-partner from making a “second bite of the cherry” claim against any future wealth, inheritances, or income you build after separation.
You finalise both by submitting two separate applications to the Federal Circuit and Family Court of Australia. You submit an Application for Consent Orders containing your agreed property and parenting terms, which a court registrar reviews and seals in chambers. Separately, once you complete 12 months of separation, you lodge a Divorce Application to end the marriage. Working with specialist lawyers ensures that both processes run concurrently without a procedural delay. There is no rule on which should proceed first.


LET'S TALK



Instant Quote

Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel 

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

/in ,

What are in the 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.

 
The concept of the “best interests of the child” is the absolute polar star of Australian family law. However, how the court interprets this principle, handles parental dynamics, and applies it in practice has undergone significant evolution, culminating in sweeping legislative changes that took effect recently.
The Federal Circuit and Family Court of Australia (FCFCOA) relies on a structured framework to evaluate these matters, moving firmly away from standard formulas and shifting toward highly individualised, safety-first assessments.
 
This principle is enshrined in Australian family law through Section 60CA of the Family Law Act 1975 (Cth). It means that all decisions about parenting arrangements, including parental responsibility, 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, reach their own agreement, 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, including how they spend time with each parent, 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. Child safety is paramount, especially where there are risks of child abuse.
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 age, 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 significant people in the child’s life (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 impact on the child’s life and the child’s living arrangements, and 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, traditions, cultural identity and cultural upbringing 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 of any proposed parenting order under this Part will have on that right.

 

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

 

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

 

  • If family violence orders apply, or have 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, any safety concerns, 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 considers the application and the proposed orders against these legislative factors in light of the family’s particular circumstances.
  • The Court will consider the information provided by the parents in their application, including practical considerations, which should implicitly or explicitly address how the proposed arrangements meet the child’s needs and support the child’s wellbeing 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 focus on making arrangements that, where possible, reflect their own arrangements and 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.
 

How the Court Considers the “Best Interests” (The Core Framework)

 

The court does not look at what is fair to the parents; it looks exclusively at what is best for the child. Under the overhauled Section 60CC of the Family Law Act 1975, the court evaluates a streamlined, non-hierarchical list of core factors:
 
  • Safety: The primary consideration is promoting the safety of the child and any person providing care (including protection from family violence, abuse, neglect, or harm).
  • The Child’s Views: The court considers any views expressed by the child, giving them direct weight based on their understanding and maturity, without requiring rigid secondary proofs.
  • Developmental, Psychological, Emotional, and Cultural Needs: A holistic evaluation of the child’s specific well-being requirements.
  • Parental Capacity: The capability of each proposed caregiver to actually provide for those developmental, emotional, and cultural needs.
  • The Benefit of Relationships: The benefit to the child of having a relationship with both parents and other significant people (like grandparents or siblings), provided it is safe to do so.
  • Catch-all Provision: Any other fact or circumstance relevant to the specific child.
  • Cultural Connection: For Aboriginal or Torres Strait Islander children, a dedicated requirement to consider their right to enjoy and connect with their culture, language, and community.

 

How It Has Changed Over Time

 

The trajectory of family law has moved from rigid structural presumptions toward a highly discretionary, child-centric approach.
 

The Historic Era (Pre-2006)

The court operated under broader discretionary powers with less prescriptive legislative checklists. While the child’s welfare was paramount, orders often fell into standard patterns of one parent having “custody” and the other having “access” or “contact” every second weekend.
 

The 2006 Reforms (The “Shared Time” Confusion)

In 2006, the Howard Government introduced a dual-tier framework of “Primary” and “Additional” considerations. Crucially, it introduced a statutory legal presumption of “Equal Shared Parental Responsibility” (ESPR) for major long-term decisions.
  • The Flaw: If ESPR applied, the Act forced judges to mechanically consider whether the child spending equal time or substantial and significant time with both parents was reasonably practicable and in their best interests.
  • The Consequence: This created a widespread, incorrect public perception that parents had a “legal right to 50/50 shared time.” It frequently fueled high-conflict litigation, trapped families in unworkable parallel parenting arrangements, and sometimes compromised child safety in the pursuit of mathematical equality.

 

3. The Landscape and Opinion in 2026

 

We are now firmly entrenched in the post-reform era established by the Family Law Amendment Act, which commenced on 6 May 2024. The prevailing consensus among practitioners, independent experts, and the judiciary focuses on simplification, safety, and individualisation.

 

The Death of the Presumption

There is no longer any legal presumption of equal shared parental responsibility, nor is there any legislative mandate forcing the court to automatically consider equal or substantial time.

 

A Bespoke, Safety-First Approach

The “meaningful relationship” factor no longer shares a top-tier pedestal with safety. Safety is overwhelmingly the gatekeeper. The 2006 two-tier hierarchy of factors is gone. The court now treats the 60CC criteria as a flat, holistic matrix. This has paved the way for more flexible, tailored parenting orders, such as granting one parent sole responsibility for medical decisions while sharing educational decisions, depending entirely on the dynamics of the family.

 

4. Practical Implementation: Consent Orders & Family Law

Because the legislation has stripped away the default template of “50/50 split,” drafting and applying for Consent Orders or navigating litigation requires a meticulous, evidence-backed approach.

 

Drafted Consent Orders

When parents reach an agreement out of court and submit an Application for Consent Orders, the court does not just rubber-stamp it. Registrars and Judges review the proposed minutes against the new Section 60CC factors.

  • The “Why” Matters: Applications must clearly articulate why the agreed time split and decision-making structure align with the children’s specific practical, developmental, and emotional needs.

  • Consultation Clauses: While the presumption of ESPR is gone, the Act still encourages joint decision-making where safe. Practical orders now utilise distinct “consultation clauses,” explicitly defining how parents must notify and discuss major long-term issues (health, education, religion) with plain-English mechanisms for dispute resolution if they hit a deadlock.

Fact-Finding & Material Evidence

 

In contested tracks, affidavits cannot rely on vague assertions of “parental rights.” Evidence must tie directly back to parental capacity and child safety. The courts place heavy reliance on Family Reports and independent single-expert witness evaluations to assess the psychological and emotional landscape of the family units.

The elevated role of the ICL 

Where an Independent Children’s Lawyer (ICL) is appointed to represent the child’s best interests in complex or high-conflict matters, they now face a strict statutory obligation to meet directly with the child and give them a voice (if the child is over 5 and wishes to speak), ensuring the child’s view is directly injected into evidence rather than filtered solely through adult conflict.

Re-opening Final Orders (The Rice & Asplund Rule)

The common law rule from Rice & Asplund—stating that final parenting orders cannot be reopened unless there has been a significant change in circumstances—has now been codified. Under the current law, the court will not reconsider a final parenting order unless a significant change occurs and doing so is in the best interests of the child, thereby preventing vexatious or continuous litigation from disrupting the child’s stability.

FAQ on the best interests of the children

1. What does the "best interests of the child" principle mean under Australian family law?
Under the Family Law Act 1975, the “best interests of the child” is the single paramount consideration for courts when approving or deciding parenting orders. Rather than enforcing rigid default formulas or prioritising what parents want, this legal test puts your child’s physical safety, emotional stability, and developmental needs first. Courts evaluate safety from violence or neglect, the child’s views, the benefit of maintaining safe relationships, and each parent’s capacity to care for them. Read the full breakdown of how this principle works in Best Interests of the Child.
2. Does the "best interests" principle guarantee a 50/50 custody or equal time split?
No, Australian law contains no statutory guarantee or automatic right to equal time or 50/50 custody splits. Instead of starting with a rigid time formula, courts focus on creating practical, safe arrangements made to your child’s specific age, schooling, and emotional health. While building a strong relationship with both parents remains important, safety and daily stability override equal time considerations if a 50/50 arrangement creates stress or risk for the child.
3. How does the court assess my child's views when determining their best interests?
Courts evaluate a child’s expressed views by considering their age, psychological maturity, and overall level of understanding of the situation. Rather than requiring children to become involved in the court process, judges gather information through independent reports, such as a Child Impact Report or Family Report prepared by a Family court expert. The court will carefully weigh these perspectives to ensure the child’s voice shapes the final decision, rather than dragging them into parental conflict.
4. How does the law balance child safety against maintaining a relationship with both parents?
Child safety takes precedence whenever a conflict arises between protecting a child and maintaining contact with a parent. Courts prioritise keeping children and carers safe from physical or psychological harm, domestic abuse, and neglect above any desire for shared parenting time. This abuse can be both physical and emotional. If teh court believes that safety concerns exist, orders may restrict contact, require supervised changeovers, or order professional supervision to safeguard the child’s well-being.
To win court approval, your draft parenting orders must show how your proposed schedule supports your children’s daily routines, education requirements, and health needs. You can do this by submitting clear details about living arrangements, changeovers, and the day-to-day decision-making responsibilities in your application. A court registrar will review these terms in chambers to confirm the arrangement is safe, practical, and child-centred. They have a great deal of experience in this process.

Important Legal Disclaimer
This publication by Kate Austin Family Lawyers provides general information only. It does not constitute formal legal advice and does not account for your personal circumstances, current financial situation, or unique family dynamics. Family law is complex and changes frequently. Reading this content does not create a solicitor-client relationship. You should not act or rely on this information without professional guidance. Every situation is different, and all parties must seek independent legal advice tailored to their specific circumstances before attempting to alter any court orders. Contact a qualified family law practitioner to discuss your specific legal matter today.

About The Author

Rachel Stubbs

Rachel is the Principal of Kate Austin Family Lawyers and a Law Society Accredited Specialist in Family Law, with over 25 years of dedicated family law expertise.  Having spent most of her career engaged in family law litigation, Rachel now prioritises out of court resolutions for family law clients through consent orders.  Her extensive knowledge of family law and capacity to draft order for any situation, whether property or parenting, sees her clients in good hands and ensure a smooth, minimal stress pathway through the family law system. – Meet Rachel