Wong on Family Law
Select topics on Family Law in Australia
Work-in-progress, 5 January 2025 (last updated)
[A] Resources; Guides; Annotated Legislation
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 8th ed, 2024) (release, 13 Dec 2024).
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 7th ed, 2023).
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 4th ed, 2017) <https://dokumen.pub/qdownload/annotated-family-law-legislation-4th-edition-9780409346848-0409346845.html>, archived at <https://perma.cc/S3RS-LH5D>.
Eithne Mills & Marlene Ebejer, Family Law (LexisNexis, Focus Series, 2017) <https://dokumen.pub/family-law-7th-edition-9780409344936-0409344931.html>, archived at <https://perma.cc/W4NY-AWQX>.
A Practitioner's Guide to Family Law (LexisNexis & NSW Young Lawyers, 5th ed, 2015) <https://www.lawsociety.com.au/sites/default/files/2018-05/The%20Practitioner%27s%20Guide%20to%20Family%20Law%205th%20Edition-ilovepdf-compressed.pdf>, archived at <https://perma.cc/M5HT-J2GR>.
Lisa Young, Adiva Sifris, Robyn Carroll & Geoffrey Monahan, Family Law in Australia (LexisNexis, 9th ed, 2016) <https://dokumen.pub/qdownload/family-law-in-australia-9th-edition-9780409341379-0409341371.html>, archived at <https://perma.cc/CDE6-NLGF>.
Renata Alexander et al, Australian Master Family Law Guide (CCH Wolter Kluwers, 10th ed, 2019) <https://dokumen.pub/australian-master-family-law-guide-10th-edition-9781925672329-1925672328.html>, archived at <https://perma.cc/F8RV-TJ7F>. -- book now up to 12th ed, 2024.
Patrick Parkinson, Australian Family Law in Context: Commentary and Materials (Thomson Reuters, 7th ed, 2019) <https://dokumen.pub/australian-family-law-in-context-commentary-and-materials-seventh-edition-9780455241241-0455241244.html>, archived at <https://perma.cc/VR2F-TYE7>. -- now in its 8th ed, 2023.
List of knowledge areas in Family Law (comprehensive):
> NSW Specialist Accreditation Scheme: 2025 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2024-12/2025%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/NS76-ZEAL>.
> NSW Specialist Accreditation Scheme: 2024 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2023-12/2024%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/84NH-Z6FC>.
> NSW Specialist Accreditation Scheme: 2023 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2022-12/2023%20Family%20Law%20Assessment%20Requirements%20V1%20-%20FINAL.pdf>, archived at <https://perma.cc/9RQK-4BCY>.
> WA 2025 Specialist Accreditation Assessment Guidelines: Family Law (The Law Society of Western Australia) <https://lawsocietywa.asn.au/wp-content/uploads/2024/12/2025-Specialist-Accreditation-Assessment-Guidelines-Family-Law.pdf>, archived at <https://perma.cc/H3TF-9JJX>.
> QLD Family Law Specialist Assessment Criteria 2023: Specialist Accrediation Distinction in Law (Queensland Law Society) <https://www.qls.com.au/getattachment/ba5f4d96-81d0-468f-9901-c5e894828de5/2023-flsa-program-assessment-criteria_final.pdf>, archived at <https://perma.cc/VX4U-GW74>.
> VIC 2023 Accredited Specialisation Assessment Guidelines: Family Law (Law Institute of Victoria) <https://www.liv.asn.au/download.aspx?DocumentVersionKey=96abdd64-d3cc-44e4-9df0-1c0189b919e4>, archived at <https://perma.cc/NZG2-HVCK>. -- see also <https://www.liv.asn.au/web/content/communities---networks/accredited_specialisation/become_accredited_specialist.aspx>.
UK Law: Jonathan Herring, Family Law (Pearson, 8th ed, 2017) <https://www.aghalibrary.com/storage/books/1609407553_AghaLibrary.pdf>, archived at <https://perma.cc/6SRT-BFYF>.
[B] Affidavits; Sworn Evidence
Phillip Sorensen, 'How to write a family law affidavit: Facts the basis of persuasion' (Paper, 18 April 2023) <https://www.phillipsorensen.com.au/psb_docs/how-to-write-family-law-affidavit-06-23.pdf>, archived at <https://perma.cc/L5ZD-8AC6>.
Paul Fildes, 'Affidavits in Family Law' (Taussig, Cherrie, Fildes Lawyers) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Affidavits_in_Family_Law.pdf>.
Richard Maurice, 'Drafting Effective Family Law Affidavits and Case Summaries' (Paper, 2019) <https://richardmauricelaw.com/wp-content/uploads/2019/01/defl.pdf>.
[C] Pleadings; Advocacy
Neil McGregor, 'Drafting Pleadings involving Third Parties in Family Court Matters' (Paper, 25 July 2019) <https://brisbanechambers.com/wp-content/uploads/2019/08/Drafting-pleadings-involving-third-parties-in-family-court-law-matters-N-McGregor-250719.pdf>.
Family Law Forms (Federal Court) <https://www.fcfcoa.gov.au/fl/forms>.
[D] Costs
NSW Law Society, Costs Guidebook 7th ed, chapter 10 - Costs in Family Law Matters <https://www.lawsociety.com.au/sites/default/files/2018-03/Ch%20110.pdf>.
Scale of costs:
> Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoa2lr2021202101205652/sch1.html>.
> Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoalr2021202101197559/sch3.html>.
[E] Jurisdiction
Mary Keyes, 'Jurisdiction in International Family Litigation: A Critical Analysis' (2004) 27(1) UNSW Law Journal 42 <https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/27-1-16.pdf>.
[F] Financial Agreements
Phillip Sorensen, 'Binding the Financial Agreement' (Paper, 10 June 2023) <https://www.phillipsorensen.com.au/psb_docs/binding-the-financial-agreement-06-23.pdf>, archived at <https://perma.cc/WS46-GFJ9>.
[G] Asset Split; Expert Evidence; Valuation
Chris Dimock, 'Calculating the Likely Split of Assets' (Paper, 2019) <https://dimockslaw.com.au/wp-content/uploads/2019/10/Calculating-the-Likely-Split-of-Assets.pdf>, archived at <https://perma.cc/R634-YUTL>.
Patrick Parkinson, 'Family Property Division and the Principle of Judicial Restraint' (2018) 41(2) UNSW Law Journal 381 <https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/05/Parkinson.pdf>.
Belinda Fehlberg and Lisa Sarmas, 'Australian family property law: 'Just and Equitable' Outcomes?' (2018) 32 Australian Journal of Family Law 81 <https://www.lexisnexis.com.au/__data/assets/pdf_file/0008/340892/Australian-family-property-law-Just-and-equitable-outcomes-2018-32-AJFL-81.pdf>, archived at <https://perma.cc/PLA6-NHRU>.
Family Court of WA, Assets and Liabilities Worksheet: <https://www.familycourt.wa.gov.au/_files/Forms/Papers%20for%20the%20Judicial%20Officer/Papers-for-the-JO-Assets-Liabilities-Worksheet-Nov-2016.xlsm>.
'Family Law Property Calculator' (Delbridge Forensic Accounting, Excel Sheet) <https://delbridgeforensic.com.au/wp-content/uploads/2021/01/Delbridge-Property-Calculator-Simple-Pool-January-2021.xlsm>.
'Balance Sheet' (FCFCOA) <https://www.fcfcoa.gov.au/fl/forms/balance-sheet>.
'Separation Calculator' (Westpac Banking Corporation, Excel Sheet) <https://www.westpac.com.au/content/dam/public/wbc/documents/excel/Life-moments/WBC_separation_calculator.xlsx>.
[H] Parenting Orders; Precedent
Parenting Orders - What you need to know (AG's Department, 2023) <https://www.ag.gov.au/sites/default/files/2023-05/parenting-orders-handbook-2023.pdf>. -- see also <https://www.ag.gov.au/families-and-marriage/publications/parenting-orders-what-you-need-know>.
Ne exeat colonia injunction.
6 May 2024 changes: Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023: <https://www.fcfcoa.gov.au/news-and-media-centre/fla2023>. -- removing the presumption of ‘equal shared parental responsibility’ and a new definition (list of factors) for ‘best interests of the child’; ss 60CC, 65DAAA.
> Consultation Paper: <https://consultations.ag.gov.au/families-and-marriage/family-law-regs-2024/user_uploads/consultation-paper_family-law-regulations-2024.pdf>.
> 'Recent Change in how the Court determines the Best Interest of the Child' (Webpage) <https://www.rnglawyers.com.au/news-and-publications/rng-lawyers-blog/recent-changein-how-the-court-determinesthe-best-interest-of-the-child>, archived at <https://archive.md/2eUYi>.
> 'The Family Law Amendment Act 2023 (Cth): A summary of the changes which will commence on 6 May 2024' (LexisNexis, 10 April 2024) <https://www.lexisnexis.com.au/en/insights-and-analysis/practice-intelligence/2024/the-family-law-amendment-act-2023-cth>, archived at <https://archive.is/TK847>.
?2025: Family Law Amendment Bill 2024 (Cth).
> explainer: 'Australia’s 2025 Family Law Landscape: Key Reforms and Family Law Regulations Explained' (Webpage, 18 October 2024) <https://mediationsaustralia.com.au/family-law-regulations-explained/>, archived at <https://archive.is/8Q820>.
[I] Notarial Practice
'An Introduction to the Notariats of Australia – seen through the Society of Notaries of Victoria' (Presentation, October 2024) <https://www.notarypublic.ie/wp-content/uploads/2024/12/Notariats-Australia-2024.pdf>, archived at <https://perma.cc/K52K-ZMTS>: "... Australian Notaries Public are all senior practising lawyers appointed by the Supreme Court of the relevant State or Territory in which they intend to practice, except in the State of Queensland and New Zealand where legislation does not exist and appointments rely on English law [similar to those in Great Britain – Scriveners and General Notaries] where Notaries are appointed under its common law heritage by England’s Archbishop of Canterbury, acting through the Master of the Faculties."
Key Texts:
> Peter Zablud, Principles of Notorial Practice (Notary Press, 3rd ed, 2024).
> Peter Zablud, A Notary's Forms and Precedents (Psophidian Press, 2002) <https://catalogue.nla.gov.au/catalog/551775>.
Practice Manual (The Society of Notaries of Queensland Incorporated, rev Nov 2008) <https://societyofnotariesqld.org/wp-content/uploads/2019/03/05-Practice-Manual-Rev-04-Nov-2008.pdf>, archived at <https://perma.cc/83HC-ZZMU>.
Hansard, Western Australia, 7 April 2005, Hon Peter Foss <https://www.parliament.wa.gov.au/Hansard%5Chansard.nsf/0/54e50cac7b099da9c825757000129df3/$FILE/C37%20S1%2020050407%20p483b-491a.pdf>, archived at <https://perma.cc/P2UC-TP8V>: "... Up to date I have informed members about the history of and the legal basis for public notaries. They have learnt that notaries have a different function in common law from civil law countries and that their principal role is that link between common law and civil law countries. However, members still do not know what a public notary does. That is what I intend to tell them. I happened to be quite lucky in this respect because very soon after I was articled, I got the lucky job of being a notary’s clerk. The firm to which I belonged was unusual in that it had three notaries public. They were the former senior partner, Mr Earnest Blanckensee, who had retired and only occasionally came in but still did do notarial acts as were required, and his two sons, the late Robert Blanckensee, and Allen Blanckensee. The firm had three notaries public. It became clear that the public notaries did not do much of the notary work themselves; they had a notary clerk. Interestingly, the person who had to know more of the law was the notary’s clerk. As the notary’s clerk, and being a thorough young articled clerk, the first time I was asked to note and protest a bill of exchange, I was somewhat taken aback. I had to find out how it was done. I sought the help of Brookes Notary, which was the leading book on notarial practice. I should explain what is noting and protesting a bill of exchange. Nearly each of those words sounds like gobbledygook. What is a bill of exchange? How does one note and is a bill of protest exchanged? Bills of exchanges are mentioned in the commonwealth Bills of Exchange Act 1909, which deals with all bills of exchange. ... That is all perfectly clear. What is a bill of exchange? A bill of exchange is a more general type of document similar to a cheque. Cheques now have a separate act of their own. However, at that time they did not; they were treated as being a specific case of bills of exchange. The difference between a cheque and a bill of exchange is that in the case of a bill of a cheque, a person draws the cheque on his bank payable to somebody else. In the case of a bill of exchange, it can be drawn on anybody to pay somebody else. It does not have to be drawn on a bank. There are many technical rules that I will not go into about bills of exchange. They were used extensively in international commerce before electronic transfers and bank overdrafts etc. A person would agree to sell certain goods to somebody and deliver the goods on board a ship. The documents would be taken from the ship, and title would be given at the other end. Those documents and a bill of exchange drawn on the buyer would be sent to the bank, which would discount them and give out the money straight away. The bank would then send the bank of exchange to the corresponding bank in the other country. All those documents would be given to the receiver, who would examine them before writing an acceptance of it. To get something liable on a bill of exchange, the receiver must accept it. ... Once it has been accepted. The point is that it is a totally different legal case once the person has accepted it. The drawer would then say it was payable at the bank 30 days after acceptance. Some 30 days later the drawer’s bank would present the accepter’s bank with the bill of exchange for it to be honoured. If something had gone wrong in the meantime, the bank would refuse to pay it. Members can imagine the difficulties that existed a couple of hundred years ago trying to prove something that happened in a foreign country. A whole system was set up to deal with it. The bank that presented the bill would go before a notary and say it wanted the bill noted and protested. That is where I came in. The firm for which I was employed acted for a few banks. The bank would produce a bill, which was normally written in any language one could possibly think of. Often the document was not recognisable as a bill. It had to be translated to find out what it was all about. Luckily most of them were written in language about which I had some knowledge and the capacity to translate. Once both the front and back of the bills were read - it was important to read both sides - one could work out where to go to note and protest the bill. I would take the bill to a bank and ask to see the manager. When the manager appeared, I asked him what was his answer on this bill. Bank managers were usually slightly taken aback by having a lawyer’s clerk appear and ask them what was their answer on it. Usually they would say there were insufficient funds and point out that that is what was written on the back of the bill of exchange. That would be the bank’s answer. I would ask the manager what was his name and position in the bank, and write it all down. Then I would go back to the office and make a copy of the bill. I introduced a novel approach to making copies of the bill - photocopying! Until then, the document in the public notaries register was handwritten or sometimes typed but never photocopied. On this brand new innovation, the photocopy of the front and back of the bill, I endorsed the answer I received; “Presented at such-and-such a bank to so-and-so who he said was the manager of the account, and received the answer: insufficient funds”. As notaries clerk I would then sign the document and take it along to the notary, who would put all these marvellous red seals on it and put it into the notaries register. If somebody wanted to sue on it, they did not have to produce the bill, the evidence or anything. All they had to say was, “Give us a protest from the notaries register.” That document - the protest - under the notaries seal, which was a copy of what was in the notaries register, would be notarised. A person would get this lovely, elaborate-looking copy of it with a big notaries seal on it, which was quite an impressive looking thing with a ribbon that was tied in and so forth. Normally, the notaries document also had to be legalised, which involved taking it to the local consul. The consul would attach another piece of paper to it with his seal on it saying that the person is a notary. That document would go over to the country, and that country could then say, “Our consular officer, of whom we take judicial notice, says that this person is a notary in that district and that this bill was presented to this person on this date and dishonoured by receiving this answer etc” - end of story! The law could still be argued about, but, at that stage, that was it. A person did not need to go to a whole lot of difficulty to prove things. As members can see, notaries have a very important part to play in international trade, although their role is less important now with the introduction of electronic transfers. Another area in which notaries have had involvement has been in taking ships’ protests. This goes back to the time when communications were difficult. In shipping law there is a thing called “a general average event”. Sometimes when a boat is at sea, a terrible storm can blow up and the ship might be lost. The only way the ship can be saved is to toss all the cargo overboard or throw some of the ship’s equipment overboard. On any voyage there are three principle interests; the cargo, the freight and the hull. When one of those interests suffers extra damage in order to preserve all three, then the master of the ship is entitled to average that damage across all the interests according to value. Therefore, if all or half of the cargo is thrown overboard to lighten the ship so it will not sink, the person who suffers the damage is the person who owns that cargo. Because throwing that cargo overboard saved the other two interests, then it is only fair that the owners of the other interests should help out. How does a person prove that the event happened? As soon as the ship docks at the next port, the most important thing the master must do is to go straight to the public notary and protest the event and say that he had a general average event. The notary will duly record all this in his notarial register, and in due course it will go back with the account. This still does not solve all the problems, but at least it shows that a protest took place and early on in the piece the master protested about the general average event. The third thing in which notaries are involved in this state is the verification and the swearing of documents. I do not know how many people who come from civil law countries have had difficulties in dealing with legal matters in their country of origin. A person does not even have to be a first generation immigrant for them to have problems. For instance, my mother was Portuguese, and I am still tied up in things involving my grandfather’s estate. He died in 1949. I suspect that, at the rate we are going, I will probably go prior to his estate being wound up. Every time somebody dies, as my mother’s generation have inevitably been doing, especially as she was one of the youngest in her family, we have to substitute the heirs for the people who were previously the inheritors. When my grandfather died, his children were the inheritors. However, all but two of the next generation are dead - my mother had 12 sisters and two brothers so there are quite a few of them - and some of the next generation are also dead. Under civil law, and because we are dealing with real property, a person cannot sell it as easily in common law countries. It is very difficult to get rid of certain things. What is really holding us up at the moment is my grandfather’s home. I have lost count of how many people are involved in the estate and how many times everything has been held up while we have to substitute more people into the thing because of the death of some other person. We are trying to get this person out of the house who has been sitting in there for a rather long time, and we have a court case going on. Of course, every time things like this happen, we have all got to agree to it and it requires the intervention of a notary. We have to get an affidavit in Portuguese that is full of legal terms, we have to get that notarised by a notary and then we have to get the Portuguese consul to legalise it before it goes off to a Portuguese court. Sometimes we can bypass the notary. There are other documents with which a notary is involved. If a person transfers land in civil law countries, it must be registered by a notary. This goes back centuries, and it was the original method of getting over the problems that we have dealt with under the Torrens land title system; that is, the Transfer of Land Act. We have a system of land registry and an assessment of indefeasible title guaranteed by the state. Prior to that, we had a system of common law tenure, which depended upon a thing called root of title. If a person wanted to show that he owned land, he would have to show a bundle of documents that showed the ownership of that land and its transfer going back many years, and that is still done in some places in New South Wales where some of the old system title is in place. We did have some here, but generally speaking everybody who wants to deal with a title transfers it to the Transfer of Land Act. However, that is the system we had. It was atrocious because people would lose documents, and on top of all that we had a system of trusts, which is unique to common law. A person could show he has the legal title but he would find that he had to hold it in trust for somebody else. Even though a person could hold the legal title, somebody else had the benefit of it. Therefore, we came up with the Transfer of Land Act. Earlier in civil law systems, the document was not even legal; a person could not even pass title if he had not registered that document with a notary. Therefore, that document had to be taken to the notary and signed, and a copy of it would be entered into his register and certified that it had been registered. The result was that they then had a public register system whereby the change of title could be tracked. Many people found it very annoying. They like to be able to sign a contract of sale and know that they are there; that does not happen in civil law countries. In civil law countries, a person has not achieved anything until the notary has registered a document. Notaries deal with many other things. I think wills have to be done before a public notary. Many other documents that we would normally get a lawyer to draw up or that we would write up on our own and then sign cannot be done like that in a civil law country. It is a far more formalistic process that is subject to controls. As was said in the case from which I read earlier, we have little idea about notaries because we come across them only in rare cases; that is, if, like me, a person was a notaries clerk and had to do a job for a bank or a shipping company, or if a person has the misfortune to have legal business in a civil law country and must continually appear before a notary public to try to get things done. The situation was simplified by allowing people to go straight to the consular officer rather than having to go via a notary. I will skip through the application a bit further to where it quotes another summary from page 19 of Brooke’s Notary - Generally speaking, a notary public in England may be described as an officer of the law . . . whose public office and duty it is to draw, attest or certify under his official seal, for use anywhere in the world, deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings in England and elsewhere; to note or certify transactions relating to negotiable instruments; and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships. The application then states - That summary obscures some of the important matters of detail required for the proper discharge of the duties of a notary. 22. Here, as in England, an important and a frequent task of notaries is the certification of the due execution of contracts or other instruments which, when sealed with a notary’s seal, are recorded by the notary in a register maintained by the notary. These are known as notarial acts. The notarial act has a particular import in civil law jurisdictions in that it is evidence in court or administrative proceedings that the matter verified by the notarial act needs no further proof. Notarial acts may either be in public form or in private form. 23. As McLelland J noted in Application of Michaelis . . . in international legal practice, great reliance is placed by authorities of one country on the accuracy and validity of notarial acts performed in other countries. This is particularly so in jurisdictions founded on the civil law in which notarial acts are regarded as probative in court proceedings. McLelland J also noted the public nature of the office and emphasised the need for complete independence on the part of a public notary. He said: “However, it is important to recognise the other ‘public’ aspect of the office, namely that the authority conferred on a public notary is, in a sense, an emanation of the authority of the State itself - I will read that again - is in a sense, an emanation of the authority of the State itself, attracting requirements of impartiality and disinterestedness analogous to those associated with quasi-judicial administrative functions.” The public nature of the office serves to underline the importance of ensuring that an applicant has the skills and experience to discharge the duties and functions of the office both efficiently and competently. 24. A typical notarial act is the noting in public form of a power of attorney by a director on behalf of a company. The notary must be satisfied as to at least 10 facts before certifying the document. It is necessary to institute particular enquiries and examine the relevant documents in order to discharge that task. Plainly, a knowledge of commercial law and practice is required to do so. Another important part of notarial practice deals with the powers ofattorney. If the power is to be used abroad, it is usually executed in the presence of two witnesses before a notary who is attested by the latter under his hand and official seal . . . Members might recall that wills are signed by two witnesses. That is because wills were dealt with in the probate, divorce and admiralty division of the High Court. Interestingly, the probate, divorce and admiralty jurisdiction of the High Court was in many respects a civil law jurisdiction, so the procedures in that division were like the civil law procedures - they were quite different from the procedures in common law. The pleadings were sworn to - we still have that - and it was a narrative style instead of pleadings. Everything in it and the whole set of rules relating to it were of the nature of a civil law matter. That is the obvious reason that testamentary dispositions require two witnesses. It goes back to the civil law way of attesting to things. It continues - There are particular requirements for the protest of a bill of exchange and for the noting and drawing up of ships’ protests. There is a heavy onus upon a notary to be satisfied that any notarial act is in order. 25. It is evident, therefore, that, as a general rule, a person applying to be a notary should be a legal practitioner of some years standing and experience. . . . 21. The functions of a notary are not prescribed by statute. They are wholly based on practice and, indeed, that is recognised by the terms of s 91(4) of the Legal Practitioners Act. I referred to the equivalent Western Australian act. It continues - The duties and functions of notaries public in England are described in Brookes Notary at p 19 in these terms - I will not go through all of that. The point I referred to was the public nature of the office. The minister may now be starting to realise why I may be a little reluctant to agree to this bill, notwithstanding that the process involved is one that I think the Attorney General should use. In fact, I am sure that he does. The case also noted the fact that people seek other advice before nominating them. One thing that becomes quite clear from reading Brooke’s Notary as being another qualification that is needed by people who want to become notaries public relates to the fact that many of the documents that notaries public might be asked to draw up are foreign law documents. Generally speaking, I do not think that any notary in Western Australia would do that, other than those who have previously practised in a civil law jurisdiction. However, Brooke’s Notary contains some forms that can be used to draw up various civil law documents. A notary must have some idea of what the civil law is about. A notary cannot function if he does not understand the difference between civil law and common law. I am sure the Minister for Education and Training probably has a better understanding of the difference between civil law and common law than do many lawyers. Anybody who has had to deal with a civil law country will understand that although many things are familiar and similar, many other things are totally different. That really comes from the underlying thought, rather than from the forms at the top. Once the forms, such as those that I get from Portugal, are translated into English - it usually takes me a little while to do that - they could just as easily have been produced for an Australian court. However, the underlying principles are quite different. Another area of the law that a notary must know something about is what is called private international law or conflict of laws; they are two names for the one thing. I regret that that is not a compulsory subject at law school. It should be. I have seen many lawyers get into trouble by not understanding the rules of private international law. It is quite different from public international law, which is very airy-fairy. Private international law is actually the law of Western Australia. It can sometimes be the law of somewhere else. It is a domestic law. The problem is this: if a notary does not understand that point, he will apply the wrong law. We are talking about the people who will be notaries public. First, they must know something about the duties involved in that role. ... The minister might not like this, but I suspect that this will be the first time that the Parliament has, in legislating for notaries, placed something on the record about what they do. If a person is to be qualified, he must know something about his job, and that he can obtain from Brooke’s Notary. He must have a reasonable understanding of a number of normal commercial international languages. If he does not and he has trouble, he will have to use interpreters, and it will be hard work. He must have some understanding of civil law. If he does not have an understanding of civil law, he will get himself into trouble. He must also have some understanding of conflict of laws; otherwise he will apply the wrong law to the transaction. There is one more thing. As well as having an understanding of public international law, he should have some idea of comparative law. If he does not have those things, it is likely to be fraught. With the advent of fast international electronic transactions and new methods of securing payments, the bills of exchange part is probably almost non-existent. I have not practised in a private firm for 16 years, so I would not know whether firms still receive them. However, I do know that even though I ceased to be an articled clerk in 1970, I was still the only person in the whole office who knew how to do noting and processing of bills. Even when I was a senior partner, whenever the notaries clerk got one of these things, he had to come and see me to find out what it was. Every time I trained somebody else, that person would move on to something else and I would be back to training the next person. ... We come back to what is probably the most important area; that is, international transactions. That will probably be the bulk of work. One of the reasons my old firm was kept busy with international transactions was that Ernest Blanckensee, and, following that, Robert Blanckensee, was the consul for Belgium, and Alan Blanckensee was the consul for Germany. Therefore, we could kill two birds with one stone by turning up and speaking to the consul and the notary public, who were in the one office, and there was one notaries clerk who could fix everything for us. The need for notaries public is very much now directed to the fact that Western Australia has a significant population of people who are either from, or the descendants of people from, a civil law country. Most of the countries in Europe and South America are civil law countries. Much of Asia - not all - has civil law. Big chunks of Asia do not have civil law; for instance, India. I have never quite worked out what law China has, but it is probably closer to civil law than our country is. However, places such as Thailand and all the places that were in French Indochina have civil law. In fact, any place that was settled by a civil law jurisdiction has civil law. Indonesia, our near neighbour, has a civil law system. Members will find that the bulk of the world has civil law. There are some exceptions to that. Canada has both. Quebec has civil law; the rest of Canada has common law. The United States has common law, apart from Louisiana, although even in Louisiana the criminal system is civil law. South Africa has a mixture. Its criminal law is common law and its civil law is civil law. Generally speaking, the most common type of law that people will come across is civil law. Whether people have come from Vietnam, South America, anywhere in Europe such as Croatia, Portugal or Italy - it does not matter what their ethnic background is - and even if they do not speak the language, they can get caught up in civil law problems and need the help of a notary public. I forgot to mention one thing, and I should mention it. The office of notary public has been seriously debased in the United States. I should raise this matter because it is relevant. In the United States every legal stenographer is a notary public. Why? In the United States, as part of pretrial discovery, examinations of witnesses are taken down in writing before a notary public. They are certified by the notary public and are then used as part of pretrial discovery. The way that is normally done is that two lawyers turn up, and a stenographer. The lawyers ask their questions in front of the notary public, who also happens to be the stenographer. That person takes everything down in writing and, when finished, certifies it as a notary public. Consequently, it is not a very highly regarded or important public office in the United States. I believe it is very important that we maintain the concept that it is a public office and that there is a public interest in who is appointed. ..."
DFAT legalisation:
> "Notaries register their seals and signatures with the Department of Foreign Affairs and Trade (DFAT). When issuing Apostilles or Authentications, DFAT certifies that the Notary’s signature and seal is genuine.": Simpson Partners <https://simpsonpartners.com.au/10-thing-know-public-notaries/>.
> "Often, the signature and seal of a notary require legalisation. This is where the signature and seal of the notary to certified as correct by the Australian Department of Foreign Affairs and Trade (DFAT). DFAT will issue a certificate of authenticity and attach it to the document. A list of sample signatures and seals pertaining to both public notaries and also Australian government departments and officials, institutions, organisations is maintained on DFAT’s database. The sample signatures and seals cover a period of many years, in order to enable DFAT to authenticate the signature or seal on even very old documents. Some countries are party to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents (the Apostille Convention). This enables the use of an Apostille. The Apostille is a statement identifying the signature of the notary and comprises a large stamp affixed to the notary’s signed document. Under the Apostille Convention, the Australian authorised affixer of the Apostille is DFAT. The use of an apostille saves time and expense for the person requiring the notarised document. ...": William + Hughes (Lexology, 27 March 2017) <https://www.lexology.com/library/detail.aspx?g=852bf585-fac7-4d44-9bf4-43aea3e45d0c>.
N P Ready, Brooke's Notary (Sweet & Maxwell, 11th ed, 1992) <https://epdf.pub/queue/brookes-notary.html>, archived at <https://perma.cc/3KXL-WWKF>.
Archived: <https://archive.is/IRc5f> (28 Nov 2024).
© Jing Zhi Wong, 2023-2025