The Family Law jurisdiction has a number of terms used on a regular basis. We've found over the years that many of these terms are not necessarily easily understood by our clients so we saw this opportunity to give you a rundown on them.
Abuse-in relation to a child means:
- an assault, including a sexual assault, of the child; or
- a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person; or
- causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
- serious neglect of the child.
Address for service
The address in Australia that a party in a case nominates as being the place where documents are to be left for them or mailed, faxed or emailed to them.
Defer or postpone a Court event to another day.
A written statement of facts by a party or witness. It is the main way of presenting the facts of a case to the Court. An affidavit must be sworn or affirmed before a person who is authorised to witness affidavits; for example, a lawyer or Justice of the Peace.
The person who seeks to have the Court make orders.
Binding Child Support Agreement
A Binding Child Support Agreement is an agreement entered into by the parents of a child setting out the amount of child support that will be paid by one party to another. Under the agreement child support can be made by way of cash payments or non-cash items, such as payment of school fees and private health insurance. Such an agreement can be entered into regardless of whether an assessment has been done by the Child Support Agency.
Both parties must obtain independent legal advice. This is because each party will be required to provide a certificate signed by their solicitor which is attached to the agreement confirming that legal advice was received in respect to the agreement and in particular, confirming that such advice was received prior to signing the agreement.
Child Maintenance Order
A Child Maintenance Order is an order made by the Family Law Courts which requires a person to pay child support to another person for the maintenance of a child or children. The order will usually include details such as:
- who is to pay the maintenance;
- who is to receive the payment;
- the amount to be paid;
- the frequency of the payment; and
- when such payments are to cease.
These types of orders can be made either by consent of the parties or by judgment of the Court.
An example of a Child Maintenance Order is:
The father is to pay the mother for the maintenance of each of the 3 children of the marriage the sum of $45 per week being a total of $135 per week.
The financial support provided for children by parents who do not live together. The child support scheme is administered by the Department of Human Resources (previously the Child Support Agency). A child support formula is applied to determine how much child support is payable.
A written agreement between the parties that is approved and formalised by the Court as a legally binding Court Order. Consent orders can be in relation to parenting arrangements for children and/or financial arrangements, for example, for the division of property.
An application made to a Family Law Court to seek a finding that a party has breached a Court Order and various remedies or penalties to that party.
The date and time when a case is scheduled to come before the Court.
De facto relationship
A relationship between two persons who are not legally married to each other; and not related by family and having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis. A de facto relationship can exist between two persons of different sexes and between two persons of the same sex.
A pre-trial and ongoing obligation of parties to family law proceedings to make available all relevant documents to the other parties.
An order made by the Court that ends a marriage. The divorce order becomes final one month and one day after it is made, unless it is shortened by order of the Court.
Draft consent orders
A term used to describe the signed agreement which you wish to have made into Court orders.
Family Law Act 1975
The law in Australia which covers family law matters.
Family Law Courts
Comprises the Family Court of Australia and the Federal Circuit Court of Australia.
Family law registry
A public area at the Family Law Courts where people can obtain information about the court process and where parties file documents in relation to their case.
Means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence or is otherwise exposed to family violence. Family violence may also amount to child abuse.
Family violence order
An order (including an interim order) made under a prescribed law of a State or Territory of Australia to protect a person from family violence.
The procedure of you lodging an application or other document with a registry of the Court. You can do this by hand, post or electronic means.
A private agreement to opt out of the jurisdiction of the Family Law Courts to deal with property and spousal maintenance. In relation to a marriage, or a de facto relationship, means an agreement that is recognised as a financial agreement under the respective sections of theFamily Law Act.
Is a broad term and can include future expectations under wills or trusts, long service leave entitlements, superannuation before it is paid out, actions for personal injury.
Independent Children's Lawyer (ICL)
Means a lawyer appointed by a Family Law Court to represent the interests of a child and to form an independent view of the child's best interests, and to present those views to the court.
A person who has been appointed to hear and decide cases; for instance, a judge.
A family law term used to state who a child lives with. Together with 'spend time with' these new plain English terms replace 'custody', 'access' and 'contact' when describing care arrangements for a child.
An order made by a Court for a financial benefit to be paid by one person to, or for, another which assists the second person to be supported.
Medical procedure application
An Initiating Application (Family Law) seeking an order authorising a major medical procedure on a child which is not for the purpose of treating some malfunction or disease.
A Parenting Order is an order which is made by either the Family Court of Australia or Federal Circuit Court of Australia which sets out details relating to the care and living arrangements of a child.
Parenting Orders can be made either by consent if an agreement has been reached between the parties or the court can hear the matter and then make an order.
The common types of orders which are included in parenting orders are:
- Who has parental responsibility for the child;
- Who the child will live with;
- What time the child will spend with the other parent and other family members, e.g. grandparents;
- Where the child will attend school;
- Any other aspect of care, welfare and development of the child.
It is important to note that Parenting Orders do not include orders relating to the financial support of a child (child maintenance/support). Child maintenance and support are separate issues and can be dealt with administratively through the Department of Human Services or privately by way of a Binding Child Support Agreement or a Child Maintenance Order.
Party or parties
A person or people involved in a court case; for example, the applicant and/or respondent.
How Family Court offices are known. For example, the Adelaide Registry is in the Commonwealth Law Courts building on Angus Street.
A judicial officer of the Court who exercises both judicial and administrative functions; for example, granting of divorces, making orders by consent and deciding the next procedural step in a case.
A person named as a party to a case against whom relief is sought by an applicant. A respondent may or may not respond to the orders sought by the applicant.
Rules- a set of directions that outlines Court procedures and guidelines.
A copy of a document which has an original Court seal stamped on it.
The process of delivering or posting court documents to a party after they have been filed, in accordance with the rules of Court. Service ensures that all parties have received the documents filed with the Court.
Spend time with
A family law term used to state who a child spends time with. Together with 'live with' these new plain English terms replace 'custody', 'access' and 'contact' when describing care arrangements for a child.
A husband or wife, or former husband or wife.
Spouse or de facto partner maintenance
Financial support for a husband or wife, or former husband or wife or a party to a de facto relationship, which has broken down as the case may be.
Superannuation Information Form
A form required to be used in property cases where there are superannuation interests being considered as part of the property settlement or division. The form is used to seek information from the trustee of the superannuation plan (a Form 6).
A person other than the principal party or parties to court proceedings who may in some way be involved or implicated in the proceedings.
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