What is a Public Notary in Australia? Everything You Need To Know

What is a public notary?

A Public Notary is a public officer, usually a practicing solicitor, appointed for life by the Supreme Court of Western Australia, and given statutory powers to witness documents, administer oaths and perform other wide-ranging and useful administrative functions of a national and international nature.

Is a public notary the same as a justice of the peace?

No. The main difference between a Justice of Peace and a Public Notary is that a Justice of Peace is only recognised in Australia while a Public Notary is recognised in overseas jurisdictions. A Public Notary acts as a type of international Justice of the Peace.

What does a public notary do?

Among other things a Public Notary can witness the signing of important documents, administer oaths, witness affidavits and statutory declarations and certify documents to be true and correct copies of original documents both for national and international purposes.

Do public notaries charge a fee for witnessing people sign documents?

Yes. The fees charged by a Public notary are not only for the time taken in providing his or her certificate or the materials and seals used and supplied but is also intended to reflect the importance of the work undertaken and the high office and responsibility of the Public Notary in performing that service.

How much does a Public Notary charge?

A Public Notary may charge a fee for providing notarial services but that fee shall not exceed the fee for those services fixed from time to time by costs determination (as defined in section 252 of the Legal Profession Act 2008 (WA).

What is an apostille?

An apostille is the legal process by which a signature, stamp or seal on an official Australian public document is proved to be genuine by being checked and certified by the Department of Foreign Affairs and Trade (DFAT) against a specimen held on file.

How can I get an apostille for a document?

Notarised documents can only be apostilled by the Department of Foreign Affairs (DFAT). Where can I find a public notary? You can visit the Public Notaries Society of Western Australia web page at www.notarieswa.com.au

Contesting a Will in WA: Everything You Need To Know

Who can challenge a will in Western Australia?

An application for provision out of the estate of any deceased person may be made by or on behalf of a spouse, a de facto partner (or a former spouse or de facto partner in limited circumstances), a child, a parent and, in some limited circumstances, a grandchild and stepchild. Learn more about what a will is and what happens if you die without a will in Western Australia.

How long do I have to challenge a will in Western Australia?

In accordance with the provisions of the Family Provision Act 1972 (WA), the time limit to challenge a will (i.e. issue a will dispute) is 6 months from the date of the grant of probate or letters of administration.

Can siblings contest a will in Western Australia?

A sibling is not an eligible person for the purpose of the Family Provision Act 1972 (WA).

Can an ex-spouse contest a will in Western Australia?

A person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise may apply for provision from a deceased estate. 

Is it expensive to contest a will in Western Australia?

It can be. However, the Supreme Court of Western Australia adopts procedures to ensure that applications pursuant to the Family Provision Act 1972 (WA) are dealt with expeditiously and cost effectively and that excessive or unnecessary costs are not incurred. Litigants and potential litigants will generally benefit by obtaining expert advice from an experienced estate lawyer as early as possible after the death of the deceased person.

What does the court consider when someone challenges a will? If the Supreme Court of Western Australia is of the opinion that the disposition of the deceased’s estate effected by his or her will, or the law relating to intestacy, or the combination of his or her will and that law, is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of an eligible person it may order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose. In forming its opinion the Supreme Court of Western Australia will have regard to the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are or may be eligible to make a claim against the estate and their financial circumstances as at the date of the deceased’s death. Adequate provision is complex and difficult to define as it varies with every unique case.

Filing for Divorce in WA: Everything You Need to Know

When can I apply for a divorce?

To apply for a divorce in Australia you and your spouse must have been separated for 12 months and fit one of the following: be an Australian citizen; live in Australia and regard Australia as your permanent home; or, ordinarily live in Australia and have done so for at least 12 months before the divorce application.

How much does it cost to get divorced in WA?

As of 1 July 2019 the Family Court of Western Australia filing fee for a divorce application is $910 (reduced to $305 in some limited circumstances). Current fees can be obtained from the Court’s website.

Do I need a lawyer to get divorced?

You can file a divorce application without the assistance of a lawyer. Applications are now filed online using the Family Court’s Commonwealth Courts ePortal system. However, an application for divorce will not resolve property or children’s matters and it is always advisable to obtain the advice of a lawyer experienced in the area of family law prior to applying for a divorce.

Do I need to live apart from my former spouse to get a divorce?

It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation you may need to file additional evidence proving that the marriage has broken down irretrievably.

How is property divided upon separation?

If parties can agree as to the division of their property upon separation then they can formalise the agreement by way of consent orders filed in the Family Court of Western Australia or by way of a binding financial agreement. There are pros and cons of both methods. If parties cannot agree as to the division of their property upon separation one or both parties will apply to the Family Court of Western Australia for orders dividing the property for them. The Court will consider the existing property of the relationship, the various contributions parties made to the property of the relationship, the respective needs of the parties and the justice and equity of each particular case.

Who do children live with after separation?

In Australia, children are entitled, in the absence of family violence or child abuse, to the benefit of both of their parents having a meaningful involvement in their lives, to know and be cared for by both of their parents, to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.

Can I move interstate with our children after separation?

You should not move interstate after separation without the prior written consent of the other parent or prior order of the Family Court of Western Australia. If you move without a court order or without the consent of the other parent, the Family Court of Western Australia may require you to return with the child/ren until the case has reached an outcome.

How can I prevent my child being removed from Australia without my consent?

If the child does not have a passport you can make a Child Alert Request to the Australian Passport Office to prevent a person from fraudulently obtaining a passport for your child. This will only last 12 months and you must ensure that your contact details with DFAT are kept up to date while the child stop alert is in place.If your child already has a passport you can apply urgently to the Family Court of Western Australia for your child to be placed on the family law watch list. This is an airport watch list system operated by the Australian Federal Police (AFP) and is designed to prevent children being removed from Australia without the consent of the other parent or court. If there is a real risk of your child being removed from Australia without your consent you must obtain legal advice from a lawyer experienced in the area of family law as a priority.

Retail & Commercial Leases in WA

Should my lawyer prepare a commercial lease?

Your lease is likely to represent one of the most important aspects of your business. The quality of the lease is intrinsically related to the value of your property and/or business. It is important to seek quality legal advice from a lawyer experienced in commercial matters before entering into a lease and that you understand your rights, liabilities and obligations.

What should be included in a commercial lease?

In theory, everything is negotiable when it comes to commercial leases. Rent, term of the lease, options to renew, payment of operating expenses, rent free periods, insurance obligations, redevelopment and relocation and fit outs can be negotiated and many special provisions can also be included such as ongoing maintenance and repair costs and rights to use common areas and car parking facilities.

What is the difference between a retail shops lease and a commercial lease?

A lease is a contractual arrangement between a tenant (lessee) and a landowner (lessor) in respect of the use of a property. A commercial lease is an agreement for the leasing of commercial property with a specific business purpose such as office areas, warehouses or industrial sites. Compared to other forms of leases, commercial leases tend to offer less legal protection as the law assumes businesses and business people are more knowledgeable than consumers and lay people and can make informed decisions that are in their best interests. A retail lease is a type of commercial lease used for leasing retail shop businesses. Retail shop leases attract additional legislative protections for consumers in accordance with the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).

Who pays the costs of a commercial lease?

In Western Australia this can be negotiated. In years gone past it was common for the lessee to bear all the costs of the preparation of the lease including its own costs and the costs of the landlord. For reasons likely to be related to the downturn in the Western Australian property market it is not uncommon for parties to now pay their own costs when it comes to the preparation of a commercial lease. 

Who pays for the cost of a retail shops lease?

Section 14B of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) provides that the tenant will not be required to pay for certain legal fees and other expenses of the landlord. These fees includes the Landlord’s legal costs in respect of the preparation, negotiation and execution of the lease, a renewal or an extension of the lease, obtaining any consents that may be required and in the Landlord’s compliance with the Act.

Can I terminate a commercial lease early?

There can be very serious legal consequences if you try to break a lease early and if you are intending to terminate a lease early, whether you are the landlord or tenant, you should first obtain legal advice from a lawyer with some experience in commercial matters. As a starting point you should review the lease carefully to see whether there is an early termination clause. Other options may include negotiating an early termination with the other party, assigning the lease or sub letting part of the property.

What is a surrender of lease?

A surrender of lease is a legal document signed by all parties to a lease once they have reached an agreement to end a lease before the end date. It should set out the key agreements between the parties and ensure that neither party has any further legal responsibilities or obligations under the lease.

What is an assignment of lease?

An assignment of lease is a legal document used to transfer the rights of an existing lessee to another party. They are commonly signed upon the sale of a business whereby the purchaser of the business takes on the lease of the property in place of the seller.

What happens when a tenant breaches a commercial lease?

It depends on the nature of the breach and the actual provisions of the lease itself. If the breach goes to the heart of the lease, such as failing to pay rent, the landlord may terminate the lease and sue the tenant for damages. If the breach is less serious, for example, the tenant has erected signage on the property that has not been approved, the lease will remain on foot and the landlord may sue the tenant for damages only.

What happens if a tenant ends a commercial lease early?

If a tenant ends a commercial lease early it is likely the landlord may sue the tenant for damages including for payment of all rent that should have been paid to the actual end date of the lease. Tenants would be wise to obtain advice from a lawyer experienced in commercial matters before ending a lease early in order to mitigate the losses.

Unfair Dismissal in WA: Everything You Need To Know

What is unfair dismissal?

Unfair dismissal occurs when an employee is dismissed from his or her employment in a harsh, unjust or unreasonable manner.

What would constitute an unfair dismissal in Western Australia?

A dismissal will be seen to be unfair if it is deemed harsh, unjust or unreasonable in circumstances where there is no valid reason for the dismissal. A valid reason for dismissal may relate to an employee’s conduct, capacity or performance. The reason must be sound and well founded, not fickle, fanciful or prejudiced. Examples of dismissals that may be deemed unfair include If your employer suddenly fires you and does not tell you the reason for the dismissal or where you were fired for a reason that had nothing to do with your performance or conduct on the job, and was a not a genuine redundancy.

What should I do if my employment has been unfairly terminated?

To make an unfair dismissal complaint to the Fair Work Commission, you must have: (1) worked for your employer for at least 6 months (or 12 months if they are a small business (ie have fewer than 15 employees); earned less than the high income threshold (currently $138,900 a year); or be covered by a modern award or an enterprise agreement. Your application must be lodged within 21 days of the day you were fired and time is of the essence.

Can I terminate an employee for poor performance?

Under unfair dismissal laws in Australia, an employer cannot dismiss an employee unless they have a valid reason connected with the employee’s conduct, capacity or because of a genuine redundancy. In addition, if the dismissal is related to conduct, capacity or poor performance, it may still be unfair if the employee is not notified of the reason for their dismissal, not given an adequate opportunity to respond to those reasons, not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the meeting or if the dismissal was otherwise procedurally unfair.

Restraining Orders in WA: Everything You Need To Know

What is a family violence restraining order?

A family violence restraining order is an order of the Magistrates Court of Western Australia designed to prevent the occurrence of family violence by making it unlawful for a family member to do certain things that may otherwise be lawful. For example a family violence restraining order may restrain a family member from approaching with in a certain distance of the protected person, attending his or her work or place of residence, communicating with the protected person or stalking the protected person.

What is a violence restraining order?

A violence restraining order is an order of the Magistrates Court of Western Australia designed to prevent the occurrence of personal violence or exposing a child to personal violence. A restraining order makes it illegal for the person to approach you or your property or use other people to contact you or to try other means of contact such as SMS, mail or email.

What is a misconduct restraining order?

A misconduct restraining order is an order of the Magistrates Court of Western Australia making it unlawful for a person (not being a family member) to do certain things in order to try and stop them from continuing their disruptive, offensive, destructive or otherwise poor behaviour.

Do I need a restraining order?

You should consider applying for a restraining order made by a Magistrate of the Magistrates Court if you require protection from someone who commits family violence or personal violence against you, threatens you or your property harasses or intimidates you and you are concerned that the behaviour will continue in the future.

How do I apply for a restraining order?

You can attend your local Magistrates Court and complete and file an application for a particular restraining order. There is no fee involved in filing the application. Most applications are dealt with within 24 hours and in the absence of the respondent.  

Should I object to a restraining order becoming final?

Advice depends on the circumstances of each particular case. There may be other more appropriate options than a restraining order and, in those circumstances, it may be wise to object to the order becoming final. 

Should I get legal advice if I receive a restraining order?

Yes. Restraining orders are very serious matters and consequences for failing to comply with orders are severe.

Do I need legal advice to apply for a restraining order?

You do not need legal advice to apply for a restraining order but it is advisable to obtain legal advice as, depending on your particular circumstances, there may be other more preferable options.

How do I apply for a restraining order?You can attend your local Magistrates Court and complete and file an application for a particular restraining order. There is no fee involved in filing the application. Most applications are dealt with within 24 hours and in the absence of the respondent.

What is a Will? Everything You Need to Know

What is a will?

will (also known as a testament) is a legal document that expresses a person’s wishes as to how their property (or estate) is to be distributed after their death and as to which person is to manage the property until its final distribution. Wills and estate planning lawyers are typically hired to create wills, as these are legal documents in the eyes of the law.

Do I need a will?

In short, yes. Your will is an incredibly important legal document that stipulates who is to receive your assets upon your death. Not having a clearly defined will can significantly increase the chance of will disputes. Learn what happens if you die without a will in Western Australia.

When is a will invalid?

There are many instances in which a will may be invalid. It may not have been executed correctly. For example, the will maker may not have signed the will or signed it in the presence of two adult witnesses. This may or may not prove fatal to the will. It may be established that the will maker did not have capacity at the time he or she signed the will or that the will maker had not read and approved the contents of the will prior to its execution. The will may have been created by fraud or unconscionable conduct. It may have been statutorily revoked by marriage or divorce. Alternatively, it may simply have been superseded by a later will.

What happens to my assets if I die without a will?

If you die without a will you are said to have died intestate. If you die without leaving a valid will in Western Australia, your estate will be distributed in accordance with the provisions of a statutory will which is set out in section 14 of the Administration Act 1903 (WA).

When should I write a will?

In Western Australia anyone over 18 can write a will. It is never to early to write a will.

Should I instruct a lawyer to prepare my will?

In short, yes. Wills are complex documents and if you make a mistake it may invalidate your will.

How much does a lawyer charge to prepare a will?

In most instances a lawyer will charge somewhere in the vicinity of $300 to $1,000 plus GST to prepare a standard will. A standard will would be one leaving assets to a spouse and then to children. If your financial affairs are more complicated then the fee is likely to be higher.

Can I write my own will?

Yes you can write your own will and there are many products online including will kits that you can download to assist you in preparing a will. That being said, it would always be prudent to use the services of an experienced succession lawyer to prepare your will particularly if you have significant assets and / or a family where it is important that your testamentary wishes are actually carried into effect upon your death.

What is an executor?

An executor is a person nominated by the will maker to carry out the will maker’s testamentary wishes.

What is the role of an executor?

The executor is responsible for the funeral arrangements, locating the original will, gathering up the assets, paying any debts and distributing the estate in accordance with the terms of the will. The executor is also responsible for preparing and lodging individual and estate tax returns and obtaining a tax clearance from the Australian Taxation Office.

Who can witness a will?

A will must be signed in the presence of two adult witnesses who should each state their full name, address and occupation on the signing page. In Western Australia a person who is unable to see and attest that the will maker has signed a document cannot act as a witness to a will. It is good practice that the witnesses are independent from the will maker. For example, beneficiaries, potential beneficiaries and relatives should not act as witnesses to the will. 

How many witnesses do I need when I sign my will?

In Western Australia a valid will requires the will maker to make or acknowledge his or her signature on the will in the presence of at least 2 adult witnesses present at the same time who then sign the will in the will maker’s presence.

Can a spouse witness me sign a will?

A spouse should not act as a witness to your will.

Can I appoint a guardian for my children in my will?

In Western Australia a person may, by his or her will, appoint a guardian of any infant child or children of the person.

What is a grant of probate?

A grant of probate is an order of the Supreme Court of Western Australia certifying the validity of the last will of a deceased person and acts as the formal authority for the executor named in the will to deal with the administration of the estate. 

What is a grant of letters of administration?

A grant of letters of administration is an order of the Supreme Court of Western Australia formally authorising a person over the age of 18 to deal with the administration of the deceased estate of a person who died intestate (without a will).