There are so many terms used in Family Law, some of which are difficult to understand! Below is a list of some of the more popular terms.
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 court case nominates as being the place where documents are to be left for them, mailed, faxed or emailed to them.
Adjourn
Defer or postpone a Court event to another day.
Affidavit
A written statement of facts by a party or witness. It is the main way of presenting the facts of a case to the Federal Circuit and Family Court of Australia . 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.
Applicant
The person who starts a Court case and 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 private 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 and obtain a certificate signed by their solicitor which is attached to the agreement confirming that legal advice was received in respect to the agreement prior to signing the agreement.
Child Maintenance Order
A Child Maintenance Order is an order made by the Federal Circuit and Family Court of Australia 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.
Child Support
The financial support provided for children by parents who do not live together. The child support scheme is administered by the Services Australia. A child support formula is applied to determine how much child support is payable.
Consent Orders
A written agreement between the parties that is approved and formalised by the Federal Circuit and Family Court of Australia as a legally binding Court Order. This is obtained by filing an Application for Consent Orders in the Court. Consent orders can be in relation to parenting arrangements for children and/or financial arrangements, for example, for the division of property.
Contravention Application
An application made to the Federal Circuit and Family Court of Australia to seek a finding that a party has breached a Court Order and various remedies or penalties to that party.
Court hearing
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.
Discovery/ Disclosure
The obligation to parties to family law proceedings to make available to the other all relevant documents to the proceedings.
Divorce order
An order made by the Federal Circuit and Family Court of Australia 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 in all states and territories.
Family violence
Means violent, FAMILY LAW ACT 1975 – SECT 4AB
Definition of family violence etc.
(1) For the purposes of this Act, family violence 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.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) economic or financial abuse; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(2A) For the purposes of paragraph (2)(g), examples of behaviour that might constitute economic or financial abuse of a family member include (but are not limited to) the following:
(a) unreasonably denying the family member the financial autonomy that the family member would otherwise have had, such as by:
(i) forcibly controlling the family member‘s money or assets, including superannuation; or
(ii) sabotaging the family member‘s employment or income or potential employment or income; or
(iii) forcing the family member to take on a financial or legal liability, or status; or
(iv) forcibly or without the family member‘s knowledge, accumulating debt in the family member‘s name;
(b) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or the family member‘s child (including at a time when the family member is entirely or predominantly dependent on the person for financial support);
(c) coercing a family member (including by use of threats, physical abuse or emotional or psychological abuse):
(i) to give or seek money, assets or other items as dowry; or
(ii) to do or agree to things in connection with a practice of dowry;
(d) hiding or falsely denying things done or agreed to by the family member, including hiding or falsely denying the receipt of money, assets or other items, in connection with a practice of dowry.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
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.
Federal Circuit and Family Court of Australia
The Court that deals with family law matters in Australia, including Divorce, Property and Parenting matters.
Filing
The procedure of lodging an application or other document with a registry of the Court. You can do this by hand, post or electronic means.
Financial agreement
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 the Family Law Act. Such an agreement that complies with the Family Law Act will be a Binding Financial Agreement.
Financial resources
Is a broad term and can include future expectations under wills or trusts, long service leave entitlements and , 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.
Judicial officer
A person who has been appointed to hear and decide cases; for instance, a judge.
Lives with
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.
Maintenance order
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 bodily malfunction or disease.
Parenting Orders
A Parenting Order is an order which is made by the Federal Circuit and Family 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.
Parenting Orders do not include orders relating to the financial support of a child (child maintenance/support).
Party or parties
A person or people involved in a court case; for example, the applicant and/or respondent.
Registry
How Federal Circuit and Family Court of Australia offices are known. For example, the Adelaide Registry is in the Commonwealth Law Courts building on Angus Street.
Registrar
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.
Respondent
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 Federal Circuit and Family Court of Australia t procedures and guidelines. These Rules are the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Sealed copy
A copy of a document which has an original Court seal stamped on it.
Service
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.
Spouse
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).
Third party
A person other than the principal party or parties to court proceedings who may in some way be involved or implicated in the proceedings.
