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Glossary of Family Law Terms and Concepts

Glossary

The following glossary includes definitions of common family law terms & concepts:

Adjournment – an Order that the matter be dealt with at a later date.

Affidavit – written evidence of an individual relied upon in Court.

Airport Watch List – an Order requiring the Federal Police to stop a named person leaving the country.

Application – a form sent to the Court requesting certain Orders be made where there are no exiting proceedings before the Court

Application in a Case – an form requesting Orders be made in an existing matter before the Court.

Arbitration – dispute resolution outside of the Court system could be thought of as a ‘private court’ as binding Orders can be made following Arbitration.

Barrister – a lawyer who specialises in court room rules, procedure and, in particular, advocacy.

Best Interests – the main consideration in Parenting matters is the ‘best interests of the child’

Binding Financial Agreement – an agreement reached regarding how assets will be divided in the event the relationship breaks down or in the event that it already has. They can be made prior to, during or after a marriage or de-facto relationship.

Binding Child Support Agreement – an enforceable Agreement regarding Child Support which requires that both parties have had independent legal advice.

Child Abduction – where one parent removes a child from a country without the consent of the other parent or alternatively retains a child in a country without the consent of the other parent.

Child Abuse – an assault of a child or the exposure of the child to family violence causing psychological harm

Child Support – payments made by one parent to the other for the care of a child

Child Dispute Conference – a conference between each parent individually and a Family Consultant regarding the issues surrounding the care of the child. A memorandum will be produced and provided to the Court.

Child Inclusive Conference – Similar to a Child Dispute Conference except that each child is also seen by the Family Consultant sometimes on their own and with each parent.

Cohabitation – when two people live together as a couple

Conciliation Conference – Court Ordered mediation in property proceedings overseen by the Registrar. If agreement is reached the matter can be finalised on the day of the Conciliation Conference

Consent Orders – Orders made by agreement between the parties. Matters can be finalised by way of Consent Orders with no need to attend Court.

Contributions – in property matters contributions can be financial or non-financial, direct or in-direct. They include monetary as well as homemaking and parenting contributions.

Counsel – a barrister

Court – “the Court” generally means the Judge in relation to Orders. It also refers to the physical location where the Judge presides over a matter.

Declaration –a statement by the Court pronouncing something as fact such as a declaration that a party is the father (following DNA testing).

Directions – procedural Orders made by the Court regarding how the matter should progress.

Disclosure – providing information to the other party

Divorce – an Order determining the end of a marriage

Enforcement Application – an Application brought to the Court to force an Order to be complied with.

Expert Report – Experts are employed to provide evidence in court by way of a report in relation to things such as business or property values and mental health of a parent.

Family Consultant – a Family Consultant is a Court appointed “expert” usually a social worker or similar. They interview parents and children when directed and prepare a report to the Court.

Family Counsellor/Counselling

Family Dispute Resolution Conference (FDRC) – except in limited circumstances parents must attend a FDRC prior to commencing Court proceedings. This usually takes the form of a mediation, with or without solicitors present.

Family Report Writer – usually the Family Consultant will also be the Family Report Writer and provide a more detailed report to the Court regarding the circumstances surrounding a parenting application. An independent Family Report Writer such as a psychiatrist may be appointed where appropriate.

Family Violence – violent or threatening behaviour that coerces or controls a family member or causes them to be fearful

Final Hearing – very few matters (property or parenting) actually progress all the way to a final hearing which takes place when a Judge hears all the evidence and makes a decision. The hearing usually takes 2 or 3 days and the judgement may not be delivered until several months after the final hearing.

Final Orders – Orders made either by Consent or following a Final Hearing which end proceedings.

Financial Disclosure – each party to property proceedings must provide “full and frank” disclosure of their entire financial circumstances to the other party. In practice this is the first step in property proceedings and usually does not require court involvement.

Financial Resource – access to funds, income or property over which a party holds no legal control. For example income from a discretionary trust or the right.

Financial Statement – when property proceedings are commenced each party must file a form called a ‘Financial Statement’ which sets out their financial position in it’s entirety and will form part of the evidence before the Court. It may need to be updated throughout the proceedings.

Independent Children’s Lawyer (ICL) – a lawyer, usually employed by Legal Aid, appointed to represent the interests of the children in a parenting matter. They will review the evidence, and sometimes interview the children, and give their opinion to the Judge as to how the best interests of the children will be served.

Injunction – an Order preventing a party from doing something for example, from selling a property, until a further Order is made.

Initiating Application – the Application form sent to the Court to start proceedings. It is accompanied by other relevant documents such as an Affidavit, financial statement or certificate regarding FDRC (section 60I certificate)

Interim hearing – a brief hearing early in proceedings which will determine what should occur pending a final hearing. For example, who should the children live with and when should they spend time with the other parent.

Interim Orders – Orders made by consent or following an Interim hearing. They will be binding until further interim or Final Orders are made.

Joint Application (Divorce) – where both parties agree to the Application for divorce and sign the application form sent to the Court.

Joint Expert – an expert appointed on behalf of both parts, usually by agreement, to prepare a report and provide evidence in relation to an issue in a case such as the value of a business or the best interests of a child.

Jurisdiction – the issues over which a court has power to make an Order. The Family Court and Federal Circuit Courts have jurisdiction to deal with matters surrounding the breakdown of a relationship and children.

Litigation – court proceedings commenced to resolve a dispute.

Limited Child Support Agreement – a private child support agreement which does not require independent legal advice but must be lodged with and accepted by the Registrar of the Child Support Agency.

Maintenance – a payment by one spouse or parent to the other spouse or parent. It can be in the form of a lump sum or regular smaller payments.

Major Long Term Issues – refers to issues relevant to children such as education, religion, culture, health, name and living arrangements.

Mention – sometimes called a Directions Hearing, it is essentially the Judge listing the matter to check in and make sure that progress has been made and to make further Directions if necessary.

Mediation

Notice of Risk – a document required to be filed by both parties when parenting proceedings commence. It details any concerns either parent has for the care, welfare or development of a child as a result of the behaviour of the other parent.

Orders – a ruling made by a Judge which must be followed at the risk of penalty.

Paramountcy Principle – in parenting proceedings the ‘best interests of the child’ are paramount.

Parental Responsibility – each parent’s responsibility to make decisions about the care, welfare and development of a child. Both parents automatically have parental responsibility and this can be varied by agreement or Court Order.

Parenting Plan – a written agreement between parents about the care arrangements for a child.

Parenting Orders – by consent order by judgement Orders made concerning the care of a child.

Parenting Proceedings – proceedings before a court with respect to a child.

Parties – a person involved in a court case. A party is usually described as the Applicant or the Respondent depending upon who commenced the proceedings.

Procedural Order – sometimes called ‘directions’ are orders regarding the progression of the matter, they do not provide a final solution

Property Pool – all the assets and liabilities of both parties to the relationship however and whenever acquired.

Property Proceedings – proceedings brought before the Court to determine how the property pool should be divided between the parties.

Recovery Order – Urgent Order requiring the Federal Police to locate and return a child.

Relocation Application – an application seeking permission to move with the child a significant distance from where they currently live. A distance which would make it harder for the other parent to spend time with the child.

Response – a document filed by a party in response to an Application

Risk of Harm – refers to a risk of physical or psychological harm to a child which has implications on the arrangements for the care of that child

Section 60I Certificte – a certificate issued by a Family Dispute Resolution following mediation which needs to be filed with an application for parenting proceedings.

Service – ensuring that the other party is aware of the proceedings and has received the appropriate documents.

Set Aside – refers to previous orders which no longer apply.

Settlement Proposal – one party proposes orders they believe appropriate in the hope that the matter can be settled without the need for ongoing litigation.

Spousal Maintenance – regular or one off payments from one spouse for the support of the other in circumstances where the second spouse is unable to meet their own reasonable expenses

“Substantial and Significant” – is a term used to describe the amount of time a child spends with the parent they don’t live with. Substantial and significant time usually encompasses both weekend and mid-week time and is thought suitable in many cases.

Subpoena – a court Order requiring a person or organisation to provide certain documents or other evidence to the court.

Superannuation Splitting Order – Orders which require an amount of superannuation to be transferred from the superannuation account of one party to that of another.

Surrogacy – an arrangement whereby a women bears a child for another woman or couple. Surrogacy for commercial gain is illegal in Australia and can only be done altruistically. Orders must be made determining the ‘parents’ of the child, this is usually done by consent.

Undertaking – a binding promise given to the court which acts like an Order

Vary – alter existing Orders or rights

“Without Prejudice – Save as to Costs” – a settlement proposal can be put to the other party on the basis that if it is not accepted it may be relied upon on the issue of costs in the future.

Witness – a person giving evidence in court.

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Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.

 

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