Glossary of Family Law Terms
If you’ve ever engaged in a family law matter, you’ve probably realised that it can be a world full of legal jargon and family law terms that aren’t always intuitive. It’s your family lawyer’s job to demystify the process and explain everything to you in a way that you can understand. This is important so that you’re able to work towards the best outcome for your family and be fully present throughout the process.
At Amanda Little and Associates, we recognise the importance of making the family law process accessible to everyone. To help out, we’ve put together this glossary of 25 family law terms that may help you understand your situation in greater detail.
FAMILY LAW TERMS A – C
Address for Service
The address for service is the address where documents can be delivered by hand, post or some other form of electronic communication.
Adjournment is putting off (postponing) a Court event to another time. Generally, hearings will not be adjourned unless unforeseen or exceptional circumstances arise. If an adjournment is granted, the person who asked for it may be ordered to pay the other person’s costs.
ADR – stands for “Alternative Dispute Resolution”. In summary, ADR is the alternative process of resolving disputes without the need for court litigation. ADR includes Mediation, Family Dispute Resolution, Conciliation and Arbitration.
Binding Financial Agreement
An enforceable agreement dealing with the division of property, and/or payment of maintenance. It can be entered into before, during or after a marriage.
Financial support for a child paid by a parent. The amount is calculated by Child Support within the Department of Human Services or by private agreement.
Collaborative Family Law
Collaborative Family Law is an alternate way for you to resolve your family law matter.
It is a process where you as a couple choose to work with Lawyers and third parties (such as accountants, psychologists etc) to make joint decisions by consensus to resolve the legal issues that you face upon separation amicably without the need for Courts or Judges.
This process focuses on needs, not entitlements.
The process allows you to jointly identify what is important to each of you and the family unit, and then make decisions together in all parties’ interests.
By agreeing to do Collaborative Family Law you are agreeing not to go to Court and to work together until a resolution is realised.
Once you reach a final agreement about what arrangements should be made for your children, the division of your matrimonial property or financial support for either partner, then you can formalise your agreement without a court hearing.
You do this by applying for ‘consent orders’.
The Court must approve of the agreement and will then issue consent orders. Consent orders are as binding as any other order made by the Court.
FAMILY LAW TERMS D – H
This is a process which requires a person to list and make available all documents that are or have been in their possession, custody or control that relate to any of the matters in question in the proceedings, for inspection by others involved in the case.
You may all agree to informal discovery, or one person may serve a discovery request on the other party.
Alternatively, the Court may make an order for discovery.
Equal shared parental responsibility
This is how the responsibility for the major decisions in a child’s life is shared between parents once a family court order is made. Parents must talk to each other and agree about major long issues including:
- the child’s education
- religion and culture
- changes to living arrangements
Equal shared parental responsibility does not mean that parents spend equal time with the child or children.
Family Dispute Resolution Practitioner (FDRP)
A FDRP is a term used for a specialised mediator in family law.
Family Dispute Resolution Practitioners are registered with the government and can issue a certificate that the parties attempted mediation (this is known as a S.60I certificate).
This then allows the parties to start court proceedings if an agreement could not be reached at family dispute resolution.
Family law consent orders
If you are able to reach an agreed resolution for your children and or property division, this will most likely be formalised into Consent Orders.
Consent Orders are Orders that are submitted to the court by the agreement of both parties to be made into final orders. As stated above they can relate to the long-term arrangements to be put into place regarding your children and / or how your assets are to be divided.
Once Orders are made by consent, they are binding on both parties and finalise your family law matter.
A family report is a report prepared by a Court psychologist which contains recommendations to assist the parties, ICL and the judge to determine what is in the children’s best interests.
The report is from a behavioural science viewpoint, not a legal viewpoint. It involves interviews with family members and other people who are important to the child’s or children’s welfare.
The family Report is a key part of every children’s matter and is given heavy weight by the judge and ICL in them determining the children’s best interest, which is the paramount consideration.
Family Violence is defined under s.4 of the Family Law Act 1975 Cth as 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.
There are many ways in which an abuser can inflict family violence on a victim which includes:
1. Physical Violence
2. Psychological harm
3. Emotional and psychological trauma
4. Financial violence
Family Violence is usually identified by controlling and coercive behaviours.
In family law proceedings in Australia, the terms “final hearing” and “trial” are often interchangeable. They are used to refer to the final proceedings of a matter before a court where an issue of law or fact is in dispute and a judicial decision is required. The proceedings are before a Judge who makes a decision (orders) and give reasons for the decision (referred to as a judgement.)
FAMILY LAW TERMS I – O
The Court may make an Order for the appointment of an Independent Children’s Lawyer or ICL. ICL is a lawyer; their role is to represent a child’s interests.
The ICL forms their own independent view of a child’s best interests and presents this view to the Court. This is done through reading each party’s material, meeting with the child (in most cases), viewing subpoena material, discussing and assessing the children’s needs utilising expert opinions and their own independent judgement.
An Interim Hearing is a hearing done on the papers and on submissions (usually without cross-examination) to deal with a matter on a temporary basis pending a final hearing.
An interim hearing in family law often sets temporary arrangements for parents to spend time with children or parties to make financial payments/arrangements, whilst the court waits for expert reports, consultants and final hearings allocations.
Irretrievable breakdown of marriage
This means when there is no likelihood of getting back together as husband and wife.
This is proven after a 12 month period of separation which is a requirement in an application for divorce.
Notice to Admit Facts
This is a notice that a person in a case may serve on the other party requiring that they admit certain facts or the authenticity of certain documents.
The notice is drawn up using the Court form known as Form 27. Any admission made in this way only applies for the purpose of the proceedings.
The person served with this notice may choose to dispute the fact or document but must do so within 14 days of service of this notice – if the fact or document is not disputed in this time the fact or document is deemed to be admitted.
Notice to produce
A Notice to Produce is a notice served by one party on the other requiring them to bring or “produce” to the hearing certain documents. These documents must be in the “possession, custody or control” of the person served. The notice is drawn up using the Court form known as Form 26.
FAMILY LAW TERMS P – Z
A Parenting Plan is a written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.
They are not enforceable but are given weight if the matter proceeds to court.
Parenting Plans are not always the most appropriate way of formalising an agreement, especially if you require certainty and enforceability.
They are particularly useful for small children or families who have good communication and co-parenting skills.
Parental responsibility is all the duties, powers, responsibilities and authority which by law, parents have in relation to children.
A Procedural Hearing is a short hearing conducted by a Deputy Registrar. They will make directions as to the next steps in your case (e.g. agreed consent orders, mediation, Conciliation Conference).
A procedural hearing will occur several times throughout your matter to progress it towards settlement or final hearing.
Shared care arrangement
The Court has traditionally viewed shared care arrangements as requiring:
- Both parents residing within close proximity of each other;
- Children to be of an age where they are able to cope with such an arrangement;
- The ability of both parents to communicate effectively with each other.
If any form of shared care arrangement is to operate between parents then there is a much greater need for parents to cooperate and effectively co-parent their children.
Substituted Order is a court order that allows service of court documents in a form other than personal service.
This could be by way of serving a third party (family or friend), serving via text message, via email, in the post or even via social media.
Orders for Substituted Service are only made when all avenues for personal service have been exhausted and/or the other party cannot be located or is evading service.
A transcript is a record of the spoken evidence in a court case.
All court hearings are recorded and then can be transcribed at the application of the party or at the application of the court. If a party requires a copy of a transcript, they are solely responsible for the costs unless the parties jointly apply for such transcript.
The team at Amanda Little & Associates are specialist family lawyers and are highly experienced with all areas of family law including mediation, divorce, children’s matters and the court. We provide support to families from our offices in Penrith, Richmond, Oran Park, Orange and Moss Vale. If you need assistance, don’t hesitate to get in touch with our friendly and supportive team on 1300 ALA LAW and we’ll be happy to help you out.