SCB LEGAL
A legal dictionary can prove rather overwhelming, so the team at SCB Legal decided to create our own family law dictionary and in plain English. We always think about our clients, as well as prospective clients who are trying to be best informed about the law.
We are dedicated to simplifying the law for you.
While Google is a wonderful resource that helps you find and better understand many terms and in a variety of industries, the law is different. Australians are governed by the Westminster system of law, so it’s inaccurate reading legal terms and definitions that are about US law for example. If you need advice, assistance or representation specific to your situation, contact us via email, via our online booking system or by calling one of our offices at Penrith or Blacktown.
Another aspect that we’ve been told is difficult, is actually finding what you’re looking for. As is often the case, you know the area of the law to which the legal term applies. However, it’s often complicated remembering the phrase, which is necessary for you to do, in order to consult a legal glossary. We thought it was very important to address these issues. This is why we intend to better index the law by providing you with the terms and phrases arranged via area of the law and alphabetically.
The following list is always expanding based on your needs and recommendations. It will continue to evolve over time, so check back regularly to learn more family law terms and phrases as you need.
Looking for a word, phrase or family law abbreviation? Click on the letter it starts with, from the A-Z tab options.
Abuse An act of physical, sexual, emotional, psychological injury or harm to another person. In Family Law, abuse relates to a child being physically assaulted, sexually assaulted or sexually exploited. Child Abuse also includes serious neglect of a child subjecting them to, or exposing them to family violence.
Access The right to spend time with a child. Now more commonly referred to as ‘time with’ children.
Accumulation superannuation When a couple separates, their superannuation is considered as part of the asset pool. Most funds (but not all) are ‘Accumulation’ which means that the amount of superannuation accumulates over time.
Acknowledgement of Service When one party is provided documents for something like a divorce and signs to confirm that they have received them. It is a way of officially recognising that a legal process is ahead.
Act An Act is a Law. In the Family Law context, it is known as the Family Law Act 1975 (the year is the original publish date but changes have been made over the years to bring it up to date). They are the guiding rules for what can and cannot, should and should not be done. It provides information about which actions and decisions should (or should not) be made.
Add-backs These are amounts of money or assets that one party says should not have been spent or disposed of. These assets or money may be added back by consent or the Court may determine that they are to be added back and form part of the asset pool.
Address for Service Official address where documents can be sent to and received. This might be a postal address or your lawyer’s address.
Adjournment When a Court date is postponed or delayed to a later date.
Adjustment/s Relates to financial separation and consideration of financial and non financial contributions of both parties to the relationship. Adjustments are made after taking into consideration what the law says is reasonable (often referred to as ‘just and equitable’). This includes any ‘future needs’ adjustments based on the circumstances of you, your former partner and/or children. See the definition of Future needs here.
Adoption The process of applying to be the legal guardian/s and primary carer/s of a child under 18 years of age.
Adversarial System The adversarial system is when two parties are opposing or against each other in Court, with a decision made by a Judge of the Family Law Court. The opposite of the adversarial system is an “inquisitorial” system. This is where an inquiry is undertaken to determine the truth. To avoid the Judge in an adversarial system making a decision on your behalf, you can instead participate in Mediation or Collaborative Practice in relation to parenting arrangements, finances and the division of property.
Advocate An advocate is someone who supports you where you may find it difficult to do yourself. A family lawyer is an example of an advocate in the Negotiation, Mediation, Collaborative Practice and other dispute resolution methods as well as representing an adult or child in the Court.
Affidavit A written statement made under oath or affirmation in the presence of a person authorised to witness it. Essentially it is a declaration setting out a persons version of events and confirms that the person who has signed it is being truthful about the contents of the affidavit. An affidavit may be required in Court proceedings as proof of evidence. Lying in an affidavit is a criminal offence.
Affidavit of Service Once documents have been served (given) on someone, an affidavit of service is the document that must be completed by the person who served the documents. This document is then filed (lodged) with the Court as proof that the documents have been served on the other party.
Affirmation An affirmation is similar to an oath. That is, a promise or declaration that information or statements provided by the individual giving the affirmation, are truthful. It is not religious.
Agent An agent is someone who is authorised to do tasks on your behalf. They may be a helper or a messenger that may serve (deliver) documents on your behalf or represent you in some situations. Sometimes when your lawyer is unable to attend Court on your behalf, they will organise another lawyer to represent you. This person is known as an agent.
Agreed Facts These are elements of a matter that both parties are in agreement about. For example, when both people agree on certain points such as dates, times, who was the primary caregiver for the children, who was the breadwinner, who was involved or how much money was spent. By classifying these as ‘agreed facts’, they then don’t need to be argued in the Court setting and the Court does not need to decide the truth of these things, helping reduce the items for consideration, time and legal costs.
Agreement An agreement can be informal or formal. An Agreement in Family Law comes in the form of a document that both parties have agreed to, and signed. It is recommended that people obtain independent legal advice from an experienced family lawyer before signing (and in circumstances, this is mandatory). It may be in relation to the terms of their time with children, child support and/or financial and property division.
Allegation An allegation is when someone accuses another person of doing something illegal or wrong and it is yet to be proven or disproven.
Alternative Dispute Resolution refers to alternatives to resolving a dispute other than going to Court. Alternative Dispute Resolution is mandatory in relation to parenting matters and must be undertaken, unless it is not safe to do so, before going to Court. Types of alternative dispute resolution avenues include mediation, arbitration, collaborative practice etc. More information can be found here.
Appeal An appeal is a formal request to a Court to review and change the decision of a previous Court. An Application is made for an appeal and a decision is made as to whether the Appeal will be allowed. Most Applications to Appeal a decision of a Judge in family law matters require permission from the Court and can only be made if there has been an error of law (not just because you are unhappy with the decision).
Appearance Physical or digital attendance at a Court event. The Court may ask parties to give their appearance (that is, identify who they are).
Appellant An ‘appellant’ is the party who has filed an application with the Court to have an outcome (or judgement) reviewed by a Court.
Applicant An Applicant is the person who has applied to the Federal Circuit and Family Court of Australia in relation to a family law related matter/s.
Application For any matter that requires confirmation or finalisation from the Court, such as Divorce Orders (paperwork to confirm a divorce has been granted), Parenting Orders (finalisation of the terms of caring for children that comply with Family Law) or Property Orders, information needs to be submitted to the Court, which is known collectively as an application.
Application for Consent Orders Consent Orders are when people agree to the terms of their Parenting Agreement or Property Settlement for example. An Application for Consent Orders is when the people who agree to the terms apply to the Court to make it official so that the Agreement is enforceable and legally binding.
Application for Final Orders An application for Final Orders is a form that is used (otherwise known as an “Initiating Application”) to request that a matter be formalised by the Court. Final Orders are the last step in the legal process and determine the final outcome, whether that be by agreement between the parties in dispute, or by a Judge. In relation to parenting, they remain in place until the children turn 18 years of age.
Application for Review This is a type of application to the Court where a Registrar has made a decision relating to a family law matter and a party to that matter wishes for the Registrar’s decision to be reviewed. It must be filed within 21 days of the Registrar’s decision.
Application in an Appeal This is the form that is filed along with a Notice of Appeal when you have lodged your Notice of Appeal out of time, when you are seeking permission to rely on further evidence or when you believe that your Appeal should be heard urgently.
Application In A Case (refer to Application in A Proceeding)
Application in a Proceeding (previously Application in a Case) An Application in a Proceeding is when there is already a Family Law matter before the Court and one of the parties wants the Court to make a decision about a certain issue or problem in the meantime, before the matter is finalised. This could be about changing who the children spend time with, overseas travel, sorting out financial issues, or anything else that needs to be resolved before the main case is finished. An affidavit must also be lodged in support of this application.
Annexure Similar to an appendix in a book, an annexure is a document or piece of evidence that is attached to the end of a legal document to provide more information or proof about something referred to elsewhere in the document. For example, when you do an Affidavit, you might want to attach a copy of your documents to prove that what you have said in your Affidavit is the truth.
Annexure to proposed consent parenting orders (current case)
Annulment An annulment is also referred to as a Declaration of Nullity and when applied for and granted by the Court, it is an acknowledgement that there was no legal marriage, even if a marriage ceremony took place. It is separate to applying for a divorce.
Arbitration A less commonly used form of dispute resolution in family law. An arbitrator is an accredited professional who has the same decision making powers as a Judge. It is different to Court in that the issues in dispute are heard in a private setting instead of in a Courtroom. This is an avenue that is often expensive but less time consuming and expensive than going through the Family Court system.
Assets In the context of family law and financial separation, assets are any property including cash, jewellery, vehicles, land, investments etc., belonging to one or both people who have been in a relationship.
Asset Pool The parties will need to work out what the net asset pool is in property/financial matters. This involves working out the value of the assets and the liabilities of the parties. It takes into account both party’s superannuation, financial resources and any add-backs.
Associate An Associate is one of the people who form part of a team to assist the Judge. An Associate receives and issues communications on behalf of the Judge. If the parties wish to have the Judge make Parenting Orders or Property Orders, for example, it is the Associate that they write to, who communicates this to the Judge. The parties can only contact the Associate when all parties consent to do so.
Balance Sheet A balance sheet is a document that sets out the assets and liabilities of the parties. It also sets out any superannuation and financial resources of the parties and any add-backs. Each party will need to set out their values for each asset and liability. The values may be agreed upon or they may be disputed.
Bankruptcy The legal process you undertake when people are no longer able to repay their debts, or a business is unable to pay its debts. There are three different types of bankruptcy in Australia; voluntary bankruptcy, personal insolvency agreements and debt agreements. In family law, this may be a personal or business bankruptcy. If someone is unable to provide child support, spousal maintenance or has an inability to pay out their former partner or spouse as part of a property settlement, they may file for bankruptcy to prove their financial position.
Barrister In complex family law matters, a barrister is engaged as an expert to provide advice and/or argue for and represent a person or people.
Bar table The table that is located in front of the Judge and Judge’s staff in a Courtroom. It is occupied by counsel, solicitors or self-representing clients.
Bench An elevated seat at the front of a Courtroom, where the Registrar, Magistrate or Judge sits.
Best Interests of a Child This phrase is used often and relates specifically to a section of family law relating to a child’s need to have a meaningful relationship with both of their parents, provided they are safe to do so.
Binding Legally enforceable, typically in reference to a legal document that has been signed by relevant parties and filed successfully with the Court.
Binding Child Support Agreement An agreement made between parents which details the financial support of any children shared between the parents. This type of agreement should be drafted by a family law and will generally be submitted to the Child Support Agency.
Binding Financial Agreement (BFA) A legal agreement about financial arrangements between partners. A BFA can be made before a couple moves in together, before they get married or after they have separated. It is a legal contract between two people about how they are going to manage their finances and property in the event of, or after separation.
Breach of Orders When a person does not follow a Court Order. This is a serious offence under the law.
Calderbank Offer A Calderbank Offer is the name given to a proposal made by one party to the other, with the goal of reaching an agreement and avoiding continuing down the path of Court. A Calberbank Offer, is made in writing and states that the proposal is confidential except for the purposes of making a Costs Application. The purpose of making a Calderbank Offer is to put the other person on notice that in the event the person making the offerreceives the same or a better outcome if the matter goes to Court (or final hearing if the matter is already at Court), then they are going to rely on that written offer when asking the Court to make a Costs Order against the person who refused the offer. It’s name comes from the case Calderbank v Calderbank.
Case A matter to be determined by the Court. When an application for Orders has be filed, and the matter goes before the Court, the matter will sometimes be referred to as a case. For example, if you lodged an Initiating Application, you now have a case before the Court.
Case Law This refers to important decisions from previous Court cases that have established legal principles to be followed in addition to legislation. Case Law is often used to assist the Court in making the right decision. For example, the Caw Law could list the steps to be taken when determining a particular issue, or set out the meaning of certain words that have not otherwise been accounted for in the legislation.
Case Management Hearing A Case Management Hearing is a Court hearing that is heard by a Judicial Registrar. The purpose of this hearing is to determine the issues in dispute, whether there is any utility in the parties attending dispute resolution, or whether the matter is ready to go before a Judge to be listed for Final Hearing. At the Case Management Hearing, the Court will also look at whether the Orders have been complied with and determine what the next steps are to progress the matter. At this Hearing, the parties can ask the Court to make Orders by consent.
Case Outline A document that the parties prepare and provide to the Court before a Hearing. The Judicial Registrar or Judge uses this document to understand the important aspects of a case. This can include the important people, dates and events involved in the case, Court documents that have been lodged and intend to be relied upon at the Hearing and the legal arguments and principles that will be presented.
Central Practice Direction Core principles outlined in a document to explain how family law cases are to be conducted. They provide context for lawyers and non-lawyers as to how cases are to be managed. These principles are designed to reduce costs and delays that have historically been associated with Family Law matters. All lawyers must provide a copy of the Central Practice Direction to their clients and the other party.
Certificate of Dispute Resolution A form that is to be completed at the end of a dispute resolution process by an official such as a Mediator or Registrar. The certificate includes details such as the type of dispute resolution conducted, whether a resolution was reached and the conduct of each of the parties.
Certificate of Exemption A certificate issued when FDR is deemed inappropriate or unsuccessful, allowing parties to proceed to Court.
Certificate of Readiness A form that must be filled out prior to the parties attending the Compliance and Readiness Hearing. This Certificate tells the Judge whether the matter is ready to get a Final Hearing date and includes information about each party, the costs already incurred and estimated future costs, the legal and factual issues in dispute that need to be determined by the Court, whether the parties have complied with the Orders and provided updated disclosure and other relevant details for the Court to consider when deciding whether to set the matter down for Final Hearing.
Chain Of Custody Chain of custody is where a parent is required to undergo a urine drug test also known as urinalysis. The testing (urinalysis) is supervised. A certain time frame is usually stipulated and outlines when it must be completed, in order to be valid.
Chambers In the context of Family Law, this refers to the Judge’s office. See Chambers Hearing for more information.
Chambers Hearing A Chambers Hearing might occur when the parties reach an agreement or the Court needs to make a decision about a matter that does not require the parties or their legal representatives to be present. For example, if a Family Report has been prepared and becomes available, the Court may make Orders in Chambers for the Family Report to be released and given to the parties. This occurs in the absence of the parties.
Change in Circumstances When a significant event/s occurs that the Court considers significant enough to warrant changing Orders. To apply to the Court to change Final Parenting Orders, the person seeking to change the Orders must show that there has been a significant change in circumstances and that it is in the child’s best interests to reconsider the Orders. See ‘Significant Change in Circumstances’.
Child Abuse
This is defined as being an assault against a child including physical and/or sexual assault, causing the child to be involved in sexual activity and/or causing serious psychological harm for example exposing the child to family violence. Therefore, for there to be a risk to the child, the child does not need to be subjected to family violence but may be exposed to it.
Child Dispute Services / Court Children’s Service This is a service where a Registrar or Judge has made an order for the service to assist families and the Court. They have specialist experience in assessing and assisting parents and children with resources in relation to the support, care and the best interests of children. The Court Children’s Service may appoint a Court Child Expert to prepare a Report such as a Child Impact Report or Family Report. Sometimes, where the Court feels it will be beneficial, Orders made may made for the Court Child Expert to attend the Dispute Resolution Conference with the Registrar to facilitate the parties to reach an agreement.
Child Impact Report (formerly known as a Child Inclusive Conference (CIC) A Child Impact Report is the process of the parents and children meeting with a Court Child Expert appointed by the Court. The first part of this process involves the Expert meeting with the parents and the second part involves the Court Child Expert meeting with the children. When meeting with the parents, the Expert will ask questions about the children, identify any family violence or any other risk. During the meeting with the children, the Court Child Expert may observe the children with their parents, may speak with the children together and/or separately and will ask the children about their experiences and their feelings. No child is forced to express their views or wishes. After the Court Child Expert speaks with the children, they may choose to speak with the parents again to discuss the children’s needs. The Expert will then prepare a short report (formerly known as a Memorandum) which will give the Court a better idea of what the issues in the case are, provide recommendations about any courses, programs or counselling the parties or children should be engaged in, assist the Court to make interim Orders and determine the next steps.
Child Inclusive Mediation Mediation (dispute resolution avenue) that involves the direct input or representation of the children’s perspectives. It allows the children to be given a voice and aims to helps parents understand the impact that the conflict is having on their children, understand why the children may have formed particular views and then come up with a strategy to address any concerns, including changing the care arrangements if necessary.
Child Maintenance Order After a child turns 18, there are times when financial maintenance is still required. For example, if the child turns 18 but is still attending school or if the child has a physical or intellectual impairment that impacts their ability to be independent.
Child Support Financial support paid by one or both parents (or another person caring for the child) to another to contribute to the costs of raising a child. Parents can reach their own private agreement which may be informal or formal (Refer to Binding Child Support Agreement) or they may follow the Child Support Assessment. If parents reach a private agreement they may choose to follow the Child Support Assessment and provide additional financial support including sharing the costs of schooling and extracurricular activities.
Child Support Assessment The process and decision made by the Child Support Services that determines the amount of money to be paid to one or both parents or carer by the other. To determine the amount of child support to be paid, a formula is used. For more information about child support calculations, click on this link.
Chronology A sequence of events that are recorded in date order (from earliest to most recent). In the Family Law Court, a chronology of events can include details such as when the parties first met, marriage, children’s births and other important dates and events.
Cohabitation This is a legal term that is used to describe living arrangements. It is often used when talking about a couple who live together either as an unmarried couple who may be in a de facto relationship, who are married or who are separated but still living under the same roof. The date of cohabitation (when the couple first started living together) is important in financial and property matters.
Collaborative Practice Where a separating couple both agree to keep their parenting or property matters out of the Court system and to get to an agreement. It is collaborative in that both people are present for discussions and other professionals are there to provide advice such as each person’s family lawyer and if helpful, financial advisors or child psychologists who can give advice to guide decision making.
Commonwealth Courts Portal A web based portal that allows users to log in and view information about their matter. It allows the user to lodge documents in support of their Court case, view and download documents that have been filed by the other party, start an Application for Divorce, view all upcoming Court dates and download Court Orders and Divorce Orders.
Compliance and Readiness Hearing When a separated couple have been unsuccessful as resolving their disputes through the mediation or other dispute resolution process, there can sometimes be issues that need to be determined by the Court. The Compliance and Readiness Hearing takes place before a Judge who ensures that both parties have complied with all Court Orders and directions and are ready to proceed to the next step, the Final Hearing. In addition to a Certificate of Readiness document, the Court may make Orders that prior to the Compliance and Readiness Hearing, each party provide a document setting out the factual and legal issues in dispute and the contentions in relation to those issues, the proposed witnesses, whether the matter can be appropriately dealt with via video conference, as well as a draft trial plan. The document will also need to list any steps that must be taken prior to the matter being listed for final hearing.
Conciliation Conference Where a matter involves property or finances, the Court will generally Order the parties to participate in a Conciliation Conference. This is similar to a mediation where the parties and their lawyers go before a Judicial Registrar and try to resolve their matter without having to go to Final Hearing before a Judge.
Conduct Money Money that is paid to a person or organisation to produce documents or attend Court as a witness in compliance with a subpoena. The amount of money to be paid will depend on how many documents are to be provided to the Court and/or how many days the person is required to be at Court. There are minimum amounts that are payable. For example, a Subpoena to Produce Documents is $25, and a Subpoena to give evidence is $75.
Confidential Case Outline Document A confidential form that is to be completed prior to the parties engaging in dispute resolution. This document provides the Registrar with a summary about the case, the parties and children’s circumstances, what the parties are seeking and what they rely upon in support of the Orders they seek. The document is not placed on the Court file and cannot later be used.
Consent Orders Legal orders agreed upon by both parties outside of Court. Relates to an agreement between parents about their parenting arrangements (also known as Parenting Orders) or an agreement reached about the terms of a separating couple’s financial separation (known as a Property Settlement).This written document is then sent to the Court, to be approved. Once approved, the Consent Orders become Court Orders and are legally binding.
Consolidated Affidavit Sometimes an Affidavit may become outdated, there may be multiple relevant affidavits in a case from the same party or an affidavit may be difficult to follow in terms of sequence of events, or unnecessary extra information may be included. In this case, a new affidavit may be required in order to ensure all information included in the affidavit is up to date, relevant and sequential. In Family Law matters, you will only be allowed to rely on one affidavit at an Interim Hearing or Final Hearing. You must therefore compile all of your evidence into the one affidavit, known as a consolidated affidavit.
Contact This is a term that is no longer used in Australian Family Law. It is now called spend time with. It referred to the time that a parent spent with their child after separation. Depending on the circumstances and any associated risk to the child, this may be either supervised or unsupervised contact.
Contravention If there are Court Orders in place and these are not complied with, then this is considered a breach or contravention of the Orders.
Contravention Application If Court Orders are breached, you can file a contravention application for the breach. This must be a real and significant breach. For example, one parent keeping the child/children. The Court will then review the evidence (which may include cross-examination), hear submissions and make a decision about whether a person has breached the Orders. If the breached is proved, the Court may Orde make-up time or make the parent do a course. Because the proceedings are similar to criminal proceedings, breaching Court Orders is taken seriously and the person in breach may be sentenced to a term of imprisonment (jail) depending on the severity of the breach. The Court also has the power to vary the Orders if there has been a breach. You should always try to resolve the breach before going to Court. In most cases, you may be required to attend mediation before you can go to Court.
Contributions In property/financial matters, the Court will look at the contributions made by each of the parties when determining what the division of property should be. Contributions include financial contributions, non-financial contributions and homemaker contributions. Financial contributions can include the amount of money each party has paid to purchase property, pay the bills or renovations on the property whereas non-financial contributions may include doing your own renovations or improvements to increase the value of the assets, and homemaker contributions including caring for the children, cooking or cleaning
Co-parenting Is where separated or divorced both parents work together and remain involved in the raising of a child or children. Both parents play a hands-on role in the development of the child and their changing needs as they grow.
Costs Notice A Costs Notice is an itemised or detailed list of costs incurred to date and the estimated future costs that a person is likely to incur if the matter proceeds to a Final Hearing. This document must be filed before every Court event.
Costs Order In Family Law, each party is usually required to pay their own legal fees. However, in some circumstances, a Judge may decide that it is appropriate for one person to pay all or part of the other person’s legal fees. In this case, they will issue a Costs Order. Some factors used in determining whether a Costs Order is appropriate include the financial standing of each person, the conduct of the parties and whether Court Orders have been complied with.
Counsel (Barrister) Counsel, also known as a Barrister, is a person that has undertaken and passed the ‘Bar Exam’. Barristers are considered to be specialist advocates with expert knowledge. A barrister is usually involved in a matter to represent and attend Court on behalf of a party. Some barristers will only be involved if there is also a solicitor representing the client. If this is the case, all communication goes through the solicitor and barrister and there is no direct contact between the client and barrister.
Counselling Certificate for applicants married less than 2 years When applying for divorce, parties who have been married less than two years must first attend counselling, in order to discuss the possibility of reconciliation. A blank counselling certificate can be taken along to the appointment for the counsellor to complete. If the divorce process proceeds, the certificate must be included in the Divorce Application.
Court Child Expert A professional (sometimes known and referred to as a Family Consultant) involved in interviewing family members to assess a family situation in more depth. A Child Court Expert considers the family’s circumstances and explores any issues relevant to the case. A series of interviews occur during this process and can span over the course of a few days. Interviews are conducted with all parties and may also be conducted with any other significant people, such as new partners, grandparents or siblings.The information is then prepared into a ‘Family Report’ to assist the Court in making Orders for the children at the final hearing.
Court Hearing The event where a case is scheduled before the Court. There are a number of different Hearings involved in the Family Law process including Procedural Hearing, Mentions, Directions Hearings, Case Management Hearings, Compliance and Readiness Hearings, Interim Hearings, Trial Management Hearing and Final Hearing. The Hearing might be heard by a Judge or Registrar either in person at the Court or online via Microsoft Teams.
Court Orders / Court Imposed Orders Orders are instructions made by the Federal Circuit and Family Court of Australia that those named in the Order must follow. These orders may be in relation to the care of children or financial arrangements (amongst others) and may be temporary (known as Interlocutory Orders) or Final Orders.
Cross Examination Once a witness has given evidence in Court, the lawyer for the other party may ask the witness questions. This is sometimes done to get extra information from them that hasn’t already been heard, or to test the evidence already given. The lawyer for the other party will put their client’s version of events to the witness and suggest that this version is correct.
Custody While not a term you’ll hear used in the Court any longer, it’s still used colloquially. Custody refers to Court Orders that detail the person or people who have a legal right to make decisions about a child’s care and living arrangements. See ‘Shared Care Arrangements’.
Decision In a Court setting, a decision usually refers to the judgment (determination) of the case. This generally occurs after an Interim Hearing or Final Hearing and might be made by the Judicial Registrar or Judge hearing the matter.
De Facto Relationship A relationship where a couple live together. It is similar to marriage but without formal marriage. There are a number of different factors the Court takes into account when determining whether a person to a de facto relationship can lodge an Application at Court. Some of these factors include the length of the relationship, the contributions made by the parties and whether there are any children of the relationship.
Defined benefit superannuation When separating, superannuation is to be considered in the property division (financial or property settlement). While most people have accumulation superannuation, others have defined benefit super which often includes a guaranteed income (pension) for life upon superannuation becoming available. Unlike accumulation superannuation, defined benefit superannuation is not calculated based on your income and contributions to you super. Instead, defined benefit superannuation is worked out based on a formula that uses a number of different factors including your age. These are typically the type of superannuation schemes for public sector and military employees.
Determination The outcome of a case by a Judge or Registrar after considering all of the evidence.
Determination of Parentage Where there are disputes about the paternity of a child, a determination of parentage may be desired or required, particularly where child support is in question. A Court Order may require a person to take a DNA test to assist in determining if someone is the biological parent of a child or children.
Directions Procedures for how or when something is to be done. See also ‘Practice Directions’ and ‘Trial Directions’.
Directions Hearing A hearing that can take place in the Court proceedings, usually only short and is held in front of a Judge or Registrar. The purpose of a Directions Hearing is to provide the Court with an update, to work out the next steps, and/or for Orders to be made.
Disclosure In property settlement matters (division of property), disclosure refers to both parties obligation or duty to disclose information about their assets, liabilities and financial circumstances. In parenting matters, this relates to disclosing all relevant information about the child or parent, and might include mental health records, criminal charges and drug results for example. Both parties have a duty to disclose this information prior to starting Court proceedings and throughout the proceedings.
Discretion The freedom a Judge has to make the best decision for the unique case in front of them, that fits within the appropriate legal limits. This means that although the Court is guided by the legal principles, there is no guarantee that you will get the outcome you seek and the outcome may vary between different Registrars or Judges.
Discontinuance When one person in a family law case decides to end their part in legal proceedings (where permitted). There is a form which must be submitted to all parties involved in the matter, as well as to the Court. Where this document is lodged, the other party is entitled to continue with their Application (even if they are the Respondent) and ask the Court to make the Orders they seek.
Dismiss/Dismissal/Dismissed In legal terms, ‘dismiss’ has a similar meaning to reject. For example, a Court may ‘dismiss’ an application if there is a decision made that proceeding would be a waste of the Court’s time.
Dispute Where there is an inability for people who are separated to come to an agreement. Commonly disputes arise about how they will divide their assets and liabilities and/or share the care of any children from the relationship.
Dispute resolution A type of mediation where families work with an independent third party (such as a mediator) with the goal being to try and resolve issues in dispute relating to property or parenting issues, while focusing on the needs of the child/ren.
Dispute Resolution Conference A meeting held with a Judicial Registrar where parents work to try and resolve issues around parenting arrangements. This is done to help avoid the need to go on to have the issues heard before a Court.
Divorce A process to legally end a marriage. A divorce can only be applied for 1 year and 1 day after the date of separation.
Divorce Hearing A Divorce Hearing takes place once an application has been made to the Court. There are circumstances where attendance is mandatory but this is not always the case. The details of your hearing, including date and time can be found on the Commonwealth Courts Portal.
Divorce Order Recognition by the Court that a marriage has ended. A Divorce Order is effective one month and one day after the Court has granted the divorce. It does not include any details of financial separation, parenting arrangements or other arrangements that may need to be considered once a couple has decided to separate.
DNA Testing A test that involves taking a bodily sample of an adult and a child. This may include a mouth swab, cheek swab or a blood test. The samples collected on the swabs or blood test can be used to check if the adult is the biological parent of the child. For Family Law matters, you need to attend a laboratory to undertake this testing.
Domestic Violence / Family Violence When a person behaves in a way that causes injury, fear or harm to the other person. It can include physical abuse, sexual abuse, emotional or psychological abuse, economic abuse, threatening behaviour or coercive (manipulative control) behaviour. As the name suggests, family violence (sometimes referred to as domestic violence) occurs when this behaviour is done by one person towards the other person they are or were in a relationship with, between parent and child, being siblings or some other family member.
Domestic Violence Order (DVO) An official document issued by the Courts. It is a civil order (so will not appear in any criminal history record). It is designed to keep the adult or child safe and sets out the rules the respondent must follow.
Duty of Disclosure The requirement for parties involved in a family law dispute to be forthcoming in sharing all relevant information to each other.
eFiling Providing documents electronically. The Commonwealth Courts Portal allows users to upload documents as PDFs without having to go in person to file as was once the case.
Enforcement (of Court Orders) Where someone has breached the terms of a formal agreement (Consent Orders) or Court imposed Orders and actions are taken to force the terms of the agreement to be followed. An Enforcement Application may be made to the Court when a person fails to transfer money or property that they were Ordered to transfer. The difference between an Enforcement Application and a Contravention Application is that a Contravention Application is used to punish someone i.e. for them to face the consequences for not complying with the Orders. See also ‘Contravention Application’.
Entitlements Actions that are allowed or must be taken in relation to family law matters.
Entity This refers to a business, company, trust or third party that, despite being a separate entity may need to be involved to complete the financial settlement process.
Equal Shared Parental Responsibility Equal shared parental responsibility means that both parents share the responsibility for significant decisions regarding their children, such as medical, health, education, religion etc. It is not to be confused for equal time with each parent. There was previously a presumption in favour of equal shared parental responsibility unless an exception applied. However, following changes in the law in May 2024, this presumption no longer applies.
Equity The aspect of the law that ensures one party does not produce an unnecessarily or unintentionally harsh outcome for either party.
Evatt List A list designed to move high-risk applications through the Court process at a much faster rate than would usually be the case. In order to be on the Evatt list, an application must be made and approved by the relevant experts and members of an expert judicial team who specialise in child protection matters will hear the case.
Evidence Any information that will be shared with the Court to assist with determining the outcome of a case. Examples of evidence can include valuations of property and assets, financial statements such as income, affidavits and expert witness reports.
Evidence in Chief When witnesses are asked to give evidence, they will be first be asked questions by their lawyer (or Judge if they do not have a lawyer). The evidence they provide, including the answers given is the ‘evidence in chief’. In Family Law, your Affidavit (written statement) is considered to be your evidence in chief and you will only be asked questions by your lawyer about whether the Affidavit is correct, and if not, whether you wish to correct anything, and in limited cases, where the Court gives permission, whether there is any additional information you wish to provide. Witnesses often are then asked questions by the other party. The answers they provide to these questions are not part of the evidence in chief.
Exhibit A document that can be used to prove a statement or claim. As an example, an affidavit can include attachments such as receipts, doctor’s reports or emails that are provided as evidence of the statement in the affidavit. When a party seeks to rely on certain documents, and is asking the Court to take these into account when making a decision, these documents will become exhibits.
Ex parte In latin, ‘ex parte’ means ‘from one party’. In Family Law, ex parte orders, hearings or applications are commonly applied for when there are concerns for the safety of a person involved or in circumstances of urgency. Where one party is not engaged in the proceedings, the Registrar or Judge may make a decision without hearing from the other party. They will then given an ex parte judgment.
Expert In legal terms, an expert is a person who is a specialist on a particular subject. They may be required to contribute to a family law matter by completing a report, acting as a witness or a number of other tasks that require an expert’s skill.
Expert Report A report prepared by an expert who is qualified to state their opinion or observations on a matter. Where a parenting matter involves complex issues including issues of mental illness, family violence, drug use and/or lack of parenting capacity, the Court is likely to make Orders for an expert report be prepared. This is where the parties (and potentially the children) have an interview with a professional (this might be a psychologist, psychiatrist or a social worker). The expert reviews all of the evidence before the Court including subpoena material and based on that information, the information received during the interviews and the observations at the interviews, the expert writes a report. In this report, the expert provides the Court with their opinion about the issues in dispute and what Orders the Court should make. In financial and/or property matters, an expert might be engaged to value the assets such as the family home, investment properties, companies or trusts for example.
Family Dispute Resolution (FDR) A broad term that refers to the different avenues available within the Family Law system to resolve disputes with the help of an impartial person or persons to help avoid the need to go to Court. FDR can include counselling, mediation, arbitration, collaborative practice however must be provided by a registered FDR practitioner.
Family Dispute Resolution Certificate A document provided by the person conducting the family dispute resolution process upon conclusion. It does not detail what was discussed but gives the outline of the outcome and whether both parties participated genuinely.
Family Dispute Resolution Conference (FDRC) A confidential process that allows both parties to work with a neutral person (called a convenor) to try and resolve early issues outside of the Court process. See Dispute Resolution Conference.
Family Law Act 1975 The law governing all family law matters in Australia.
Family Law Watchlist (Formerly Known As The Airport Watchlist) If you have concerns about a parent taking the children out of Australia then you will need to make an application for the children to be placed on the airport watchlist. Once the application has been made and the children’s names are on the watchlist, this will be sent to the Australian Federal Police who are responsible for ensuring that the children do not leave Australia. This includes by air or by seas. This will remain in place until an Order is made removing the children’s name.
Family Report A Family Report is what can be used to assess a family situation in more depth. This can assist the Court in making long-term Orders for the children at the Final Hearing. A Family Report is conducted by a Child Court Expert (formerly referred to as a Family Consultant).
Family Report Writer Also known as a Child Court Expert. A professional engaged to interview family members to assess a family situation in more depth. The information is prepared into a ‘Family Report’ to assist the Court in making decisions about children.
Family Violence Family violence is defined in the laws dealing with family matters and involves any behaviour that has caused harm to another person or causes another person and/or their family to be scared about the other person causing harm to their safety/wellbeing or forces a person or their family to do certain things. This conduct may involve actual violence, threats of violence or coercive and/or controlling behaviour causing the person and/or their family to be fearful. Family violence can include violence between spouses/ex-spouses, against a child, between siblings or child abuse/neglect.
Family Dispute Resolution Family Dispute Resolution (FDR) may also be known as mediation. This is where the parties and sometimes their lawyers come together with an independent person (known as a family dispute resolution practitioner or a mediator) to try and resolve the matter. Where the dispute involves children, it is a requirement for the parties to attend FDR/mediation before commencing Court proceedings. Sometimes, even after the matter is in Court, the parties may be required to engage in mediation. This could be private mediation, legal aid mediation or Court mediation.
Family Dispute Resolution Practitioner (FDRP) A professional trained to assist separating parties to resolve some or all of their family law related disputes. An FDRP can also issue a Section 60i Certificate. For more information see ‘Section 60i’.
Financial Disclosure In property/financial matters, each person is required to provide full and frank disclosure of their financial circumstances. Some documents require disclosure for 12 months, whereas others may be up to three years. This includes bank statements, cryptocurrency, shares, trust deeds, superannuation statements and other information about your assets, liabilities and financial resources.
Financial Statement A Financial statement is one of the forms which may need to be lodged with the Court for property matters. This document identifies what you own and what debts you have. It also provides the other party and the Court about your income and expenses.
FDRP Family Dispute Resolution Practitioner. A professional trained to assist separating couples to resolve some or all of their disputes.
Federal Circuit and Family Court of Australia Formed in 2021, the Federal Circuit and Family Court of Australia is the Court that all family matters are heard in. It has two divisions; Division 1 is for complex matters and appeals; Division 2 is for all other family law matters.
Fees There is an amount of money to be paid (fees) when filing documents, such as an application for divorce or for Court fees. These are separate from legal fees for advice or representation.
File/Filing The action of formally filing an application to the Family Court. It may be to start proceedings in the Family Court that may be short term (called Interlocutory Orders) or long term (known as Final Orders).
Filing Fees The charges payable when filing an application or appeal to the Court. For a full list of filing fees, you can visit the Federal Circuit and Family Court of Australia’s Family Law Fees page.
Final Orders Orders that are made by the Court by way of consent or following a Hearing. Final Orders are made by a Registrar or Judge after considering the circumstances of the case, and are the last step in the legal process and determine the final outcome of the case. They are legally binding and there may be ramifications if a person breaches the Final Orders.
Financial Agreement A formal agreement that details how two people will share their assets and liabilities between them upon the end of the relationship. It is known as a prenup when before marriage but during a relationship or marriage, or upon the end of a relationship or marriage, can be drafted and when each person has sought independent legal advice and signed it, can be submitted to the Court to make it legally binding. It is then known as a BFA (Binding Financial Agreement).
Financial Contributions Monetary contributions made by each person in a relationship before and during a relationship to acquire, maintain and enhance assets or lifestyle. (See related Non-Financial Contributions)
Financial Disclosure In property proceedings, each party is required to give full and frank disclosure for up to three years. This includes bank statements, superannuation statements and other information about your assets and liabilities.
Financial Questionnaire A legal form that both parties complete independently, detailing the financial contributions of both while together and since separation. The Financial Questionnaire can be found at the link here: Financial Questionnaire | Federal Circuit and Family Court of Australia
Financial Resources Referred to in the financial settlement process, a financial resource is something that could provide financial or monetary benefit if needed. Some common examples include superannuation, long service leave and future pension.
Financial Separation The process of financially separating from a de facto partner or spouse upon the end of a relationship that results in a Property Settlement (also known as a Financial Settlement).
Family Dispute Resolution Conference (FDRC) A confidential process that allows both parties to work with a neutral person (called a convenor) to try and resolve early issues outside of the Court process. See ‘Dispute Resolution Conference’.
Family Dispute Resolution Certificate A document provided by the person conducting the family dispute resolution process upon conclusion. It does not detail what was discussed but gives an outline of the outcome and whether both parties participated genuinely.
Financial Settlement The legal process of separating the finances of two people who either are or were married. It’s important to note that a financial settlement is a separate legal process from a divorce.
Financial Resources Referred to in the financial settlement process, a financial resource is something that could provide financial or monetary benefit if needed. Some common examples include superannuation, long service leave and future pension.
Future Needs The legal term referring to what a person may need in the future, particularly when it comes to finances. Some common factors include the age and health of the person, whether they are caring for a person under 18 years and the earning capacity of a person.
Family Law Rules The framework for how family law cases are to be conducted from start to finish. The Rules are designed to reduce delays and reflect the most up to date amendments to Family Law.
Family Law Regulation There are numerous Family Law regulations. There are regulations specific to intercountry adoption, child abduction, child protection, fees, the Hague Convention, Superannuation and Regulations for the Court. Lawyers and parties involved in family law matters must abide by these regulations.
Finding (Court makes a Finding) A finding is the formal determination made upon the facts and evidence provided in a Court hearing. In Family Law, findings might relate to determining what parenting arrangements should be made for children, how finances should be split, child support should be set or discoveries relating to family violence affecting parenting arrangements, amongst other areas that were previously unclear or unresolved.
Financial Statement A document that includes an exhaustive understanding of the financial position of a person. It should include all relevant financial details, including employment, all forms of income, tax details, expenses, assets and liabilities.
Former Matrimonial Property Any assets, liabilities, superannuation and other financial resources parties of a marriage that had previously been owned separately or together.
“Full and Frank” Disclosure A legal term used in the financial settlement process. It refers to the need for both parties to be honest and provide all relevant financial information to the other party.
Family Consultant Experts such as psychologists and social workers who conduct assessments and use those to write a report for the Court that helps in determining the best outcome for the child/ren.
Federal Circuit and Family Court of Australia Formed in 2021, the Federal Circuit and Family Court of Australia is the Court that all family matters are heard in. It has two divisions; Division 1 is for complex matters and appeals; Division 2 is for all other family law matters.
Flagging Order An Order preventing the trustee of a superannuation fund from transferring or otherwise dealing with a persons superannuation until the Flagging Order is removed. A Flagging Order may be put in place when a person is nearing retirement age or are already retired and receiving payments, and a final property/financial settlement has not yet occurred.
Final Orders Orders that are made by the Court by way of consent or following a Hearing. Final Orders are made by a Registrar or Judge after considering the circumstances of the case, and are the last step in the legal process and determine the final outcome of the case. They are legally binding and there may be ramifications if a person breaches the Final Orders.
Fees There is an amount of money to be paid (fees) when filing documents, such as an application for divorce or for Court fees. These are separate from legal fees for advice or representation.
Filing fees The charges payable when filing an application or appeal to the Court. For a full list of filing fees, you can visit the Federal Circuit and Family Court of Australia’s Family Law Fees page.
Family Violence Order (FVO) An Order made by state or territory laws (the Federal Court does not make Family Violence Orders) that protects one or more members of a family from violence being perpetrated by another member of the family. Family Violence Orders can impact other orders, including Court orders around parenting and custody.
Financial Questionnaire A legal form that both parties complete independently, detailing the financial contributions of the parties at the time they started living together, while together and since separation. It also sets out details about their future needs. See also ‘Future Needs’. The Financial Questionnaire can be found at the link here: Financial Questionnaire | Federal Circuit and Family Court of Australia
Genuine Steps It is a requirement in family law matters for people to try to resolve their issues before entering the Court, with the intention of preventing the need to enter the Court system at all. Putting in a genuine effort into this process is what’s referred to as ‘Genuine Steps’.
Genuine Steps Certificate This is a document that must be lodged with any Initiating Application or Response to Initiating Application. In family law, the Genuine Steps Certificate confirms that parties have made a genuine attempt to resolve or minimise the issues in their parenting and/or property matter by complying with and following the steps required before starting Court. There are exemptions to complying with these pre-action (pre-Court) steps including if it is not safe to do so or if the matter is urgent.
Grounds of Annulment Grounds of annulment are the reasons a Court can rule that a marriage was void, even if the ceremony took place. Some examples of ‘grounds for annulment’ include if one or both people were underage, if one person was already married to someone else, or if one or both people were forced into the marriage.
Grounds of Divorce In Australia, there is the principle of no-fault divorce. In order to be able to apply for divorce, one person does not have to have done wrong by the other. The only Grounds of Divorce in Australia, is that the marriage has irretrievably broken down, that the parties were married for more than two years and that the parties have been separated for 12 months. Where a couple have been married for less than two years, a Counselling Certificate must be filed.
Guardian In the context of family law mattrs, a Guadian is sometimes also referred to as a Guardian ad Litem, Litigation Guardian or Case Guardian. A guardian is a representative for another person who cannot adequately represent themselves in the Family Law Court. A guardian may be required when there is a question about a persons capacity to understand the process involved or consequences of the proceedings or to understand the legal advice being given to them.
Hague Convention A Treaty (agreement) in place between Australia and a number of other countries that allows for the lawful return of children wrongfully taken from a parent across international borders. It also allows for parents who are seeking contact with children internationally.
Hearsay A term applied to a type of evidence that was heard from another party. This type of evidence is generally not permitted.
Hearing A proceeding in the Court to resolve an issue. You can view a full list of the types of Hearings in Family Law provided here.
Hearing fees There are two different types of hearing fees. The first is ‘The Setting Down for Hearing Fee’. This fee is non-refundable. The second is the ‘Daily Hearing Fee’. The amount varies for each Division of the Court.
Impasse A point in a dispute where the parties cannot reach an agreement.
Independent Children’s Lawyer (ICL) A lawyer appointed to represent a child’s interests in Court.
Indigenous List A modified case management process designed to deliver more equitable outcomes for people identifying as Aboriginal or Torres Strait Islander. You can learn more about the locations around Australia and how to apply to be considered to be included on the Indigenous List, visit Indigenous list | Federal Circuit and Family Court of Australia.
Initiating Application This is the application that you must complete and lodge to start family law matters at Court. This application sets out your details, the other parties details, the children’s details (if any), the relationship/marriage details and the Orders you are wanting the Court to make. If you are seeking Interim Orders, an affidavit must be lodged in support of your application.
Injunction An Order made by the Court that requires a person to take certain actions, or to refrain from doing certain things. For example, in property/financial matters, an injunction could be imposed preventing the sale of the family home or disposing of assets before a financial agreement has been made. In parenting matters, there could be an injunction preventing the parties from denigrating the other parent or their family, or restraining them from physically disciplining the child.
Inspection This generally refers to Orders for parties to inspect Subpoena material.
Instructions Instructions are what a person who has engaged a family lawyer instructs or tells their family lawyer to do, after they have received legal advice specific to one or more issues. For example, a person may instruct their lawyer to either accept or reject an offer.
Interim Application An application to the Court to get temporary Orders (shorter term Orders) until a final result (final Orders) are made. For example, a person may ask the Court to let them take their children overseas on a holiday if the other person does not consent and there are no Orders about overseas travel. In relation to property, a party may ask the Court to make Orders for a property to be sold and the monies held in their lawyers Trust Account until final Orders are made.
Interlocutory Orders Court Orders issued on a temporary basis, until a final outcome is obtained. See also ‘Interim Orders.
Intervenor This could be someone that is not directly involved in the matter (i.e. not a parent or party to a de facto relationship or marriage), but who has an interest in the proceedings. For example, the Intervenor could be child welfare or a Trustee for bankrupt parties.
Intervention Order A Court Order for the protection of a person in cases involving domestic or family violence.
Irretrievable breakdown of marriage A legal requirement for the Court to grant a divorce. It can be demonstrated by the couple being separated for a minimum of 12 months, with no intention of getting back together.
Issues in Dispute These are the issues that are unresolved and require determination either through negotiations, alternative dispute resolution or Court intervention.
Joint balance sheet This is where both parties contribute to one document which itemises all of their assets and liabilities, as well as their current value.
Joint custody This is a phrase no longer used. See definition for ‘Shared Care Arrangements’.
Joint Letter of Instructions Once parties have mutually agreed on an expert (for example, a property valuer for property or a psychologist for parenting), parties are to negotiate the terms on which they agree should be sent to that expert. This letter sets out the questions and information the parties want the expert to provide and the documents the expert is to review when preparing their report.
Joint tender bundle A collection of documents produced by both parties (or their lawyers) that are combined, and presented to the Court to consider when making a decision. The documents included in the joint tender bundle are generally the subpoena material that has been produced to the Court. A joint tender bundle is usually only required for a Hearing. This approach means that both parties agree to what evidence is provided to the Court, saving time and costs.
Joint trial plan This is an agreement between parties (or their lawyers on their behalf) as to how the trial will proceed. The trial plan may set out the factual and legal issues to be determined, the proposed witnesses to be called, a timetable detailing how the trial will run and whether there are any other steps that need to be undertaken before the trial can take place. The purpose of the trial plan is to ensure the Court is aware of these things so that the final hearing can proceed as smoothly as possible.
Judge The individual assigned to review the information and evidence and decides the outcomes of a case. They are the judicial officer sitting at the front of a Courtroom who wears a robe.
Judgment The decision made by the Court at the end of a case, after all evidence has been heard.
Judgment Reserved Sometimes a Judge will need extra time to consider a case before they make a final judgement. A final hearing date will be set for the judgment to be made.
Judicial Discretion A Judge or Registrar (equivalent power in Court for some issues) may exercise the freedom to make the best decision for the unique case in front of them, that fits within the appropriate legal limits.
Judicial Officer In family law matters, a judicial Officer is a Registrar, Magistrate, Judge or Justice. The people in these roles facilitate and/or determine the outcome of various family law matters that require resolution with the support of the Family Law system.
Judicial Registrar Often experienced family law mediators, Judicial Registrars help resolve issues early in the process. This can help to keep matters out of Court. If a matter does need to go to Court, the Judicial Registrar helps to triage cases and in some cases can give interim orders in parenting or property matters.
Jurisdiction The Scope of a Court’s authority. Each Court in Australia is able to hear certain matters and make decisions on certain areas of law. Amongst other things, the Family Law Court’s jurisdiction includes applications for divorce, applications for spousal maintenance, property and financial disputes, Parenting Orders, the enforcement and breach of orders already made as well as location and recovery orders.
Just (just and equitable) “Just and equitable” is a phrase you will hear a lot when determining how you will divide your finances and property upon a separation. This essentially means the outcome is to be fair and reasonable given the specific circumstances and in accordance with the Family Law Act.
Kinship Care The care provided for a child by family members or members of the child’s social network when their parents are unable to provide the necessary care.
Lawyer A person that has undertaken the relevant studies and training. A family lawyer work in family law and can help individuals understand family law and how it applies to their situation, as well as helping them to resolve any issues they may have in dispute.
Lawyer Assisted Mediation This is where in the dispute resolution process you are represented by a lawyer during the dispute resolution process. The lawyer can provide advice as you progress through the decision making process about any issues in dispute and aids in confident decision making.
Leave In the legal context, leave means permission. For example, if the time has passed when a person could appeal a decision, the Court may give leave (permission) to allow the process to take place outside of the usual limits.
Legal Representative This is the lawyer that represents the individual in their family law matter. See definition for ‘Lawyer’ and ‘Solicitor’
Legislation are the laws that are made by state or federal parliament. In Family Law, the legislation is found in the Family Law Act 1975, the Federal Circuit and Family Court of Australia Rules 2021 and the Family LAw Amendment Act 2023.
Letter of Instructions (generally a joint letter of instructions) A letter that is used to give an expert a brief outline or summary of the case and instructions for what the expert is being asked to do.
Liabilities Debts (money owed) by one or both parties. All details and documents about a persons liabilities must be disclosed as part of the financial disclosure process. Liabilities are to be provided on the balance sheet along with assets to assist in determining the financial division/property settlement process.
Lighthouse Model (definition of Risk Screening is relevant to this) A system of identifying cases where there is considered to be a safety risk. It involves early risk screening, identification and management of safety risks, referral of cases to appropriate services and the overall safe management of high risk cases.
Listing A listing is the details of when people involved in a family law matter are required to attend the Family Law Court.
Litigation Proceedings in the Court. In Family law, the litigation process begins when two parties cannot reach an agreement through mediation and require the Court to make a decision.
Lives With In Family law matters, the person or people a child ‘lives with’ are the people the child primarily spend their time with, and who provides primary care for the child. This could be one parent in one house, or 2 parents in two different houses or another family member.
Location Order When one parent has taken the children and you do not know where they are, you can ask the Court to make an Order to help you locate them. The Order will usually require Government bodies such as Centrelink, to track the location. You can ask for this Order when the parent has taken off with the children and you are also seeking a recovery Order or perhaps you have not seen the children in a while and you want to spend time with them but don’t know where they are.
Magellan Program/List A list specifically designed to hear and determine cases that involve very vulnerable children. This may be due to serious allegations of sexual or physical abuse. Matters added to this list are prioritised over less urgent family law matters, and aim to be dealt with promptly by the Court. Learn more about criteria for the Magellan list here.
Magistrate A Judicial Officer of the Court who is able to make decisions in Family Law cases, such as Applications or Orders in the Local Court setting. A Magistrate can also refer the matter to the Family Law Courts for the matter to be determined in by a Registrar or Judge. A person may file an Application in the Local Court when they are seeking a Recovery Order or when they reach an agreement and are asking the Court to make Consent Orders as the process is sometimes quicker.
Major Complex Financial Proceedings List Cases where there is an asset pool of greater than $20,000,000 is being contested, as well as complex issues in dispute, such as (but not limited to) serious allegations of non-disclosure, fraud or assets held overseas.
Maintenance After separation, if one person cannot financially support themselves from their own income or assets, then the former partner may be required to pay that person ‘maintenance’, in order to cover the necessary expenses. There are specific criterial that must be met including whether that person is able to financially afford to support their former partner. See also ‘Spousal Maintenance’.
Marital Property Any assets and liabilities that the parties to a marriage (or de facto relationship) have an interest, whether such assets and liabilities are in one or both persons names. This can include real property, savings, cryptocurrency, shares, superannuation, mortgages, credit card or personal debts. Assets brought into the marriage that were individually owned may also be included.
Marriage The Marriage Act defines marriage as the union of two people to the exclusion of all others, voluntarily entered into for life. Marriage can be entered into by two people regardless of sex (gender).
Matters A matter or matters refers to the issue or issues that are to be resolved through negotiation, mediation or other dispute resolution methods or require the intervention of the Family Law Court.
Mediation A form of FDR (family dispute resolution) where a neutral third party helps disputing parties reach an agreement. See also ‘Family Dispute Resolution’.
Mediation Position Paper A document given to the mediator before the mediation begins to give them context of the case, any important information around the case and issues in dispute, in order of importance. May also be referred to as Mediation Briefing, Mediation Statement or Background Notes. Learn more about mediation here.
Mediator In relation to family law, a Mediatior is an accredited professional in family law who is trained in being an impartial third party to help people who are in dispute in relation to their parenting arrangements or financial settlement (property division) reach an agreement. See also ‘Family Dispute Resolution Practitioner’.
Medical Procedure Application When parents are in dispute about whether a medical procedure should be performed on a child, the parent who wishes for the child to have the procedure can apply to the Court for a Medical Procedure Order. They will be required to provide evidence as to why it is in the best interests of the child. It may be in relation to vaccinations, surgical procedures, psychological treatment or other medical procedures.
Medical Procedure Order Authorisation for a medical procedure or treatment to be given to a child. This is only in circumstances where a child’s parents are in dispute about the medical treatment. After an Application is filed, the parent’s views and evidence is heard and tested in a Courtroom (and the child’s views as well if age appropriate) before the Judge makes a final decision. If granted by the Court, the decision is made into Orders, known as a Medical Procedure Order.
Mention A Court event where the Judicial Officer makes Orders about the next steps in the proceedings.
Minute Of Orders Proposed Minute of Orders is where you give the other parties and the Court a document disclosing what Orders you are seeking at that particular time. This could be in the interim or on a final basis. Sometimes, people’s positions change as time progresses, which is why the Minutes of Order may need to be done. This demonstrates your position at that point in time to the Court and the other parties. Minute of Orderd can also be provided to the Court when the parties reach an agreement and they want the Court to make the Orders that they have agreed to.
Mitigate Risks To reduce or remove risk. For example, if there are allegations of child abuse, supervised time may mitigate the risks.
Negotiation A dispute resolution method to resolve issues in dispute. Negotiation is best approached once you have sought legal advice to make sure that any decisions you make do not create unforeseen issues and that they are in line with the Family Law Act. Negotiation can also be conducted on your behalf by a family lawyer.
No Fault Divorce When applying for a divorce in Australia, there is no requirement to prove that one person did something to cause the breakdown of the marriage. The only Grounds of Divorce in in Australia, is that the marriage has irretrievably broken down.
Non Financial Contributions Non-financial contributions are the contributions in a relationship that are not income producing in the same way as a salary. Non financial contributions may include one person doing renovations or improvements to increase the value of assets. This is separate to homemaker contributions which includes caring for the children, cooking, cleaning or running a family/household. See also ‘Homemaker Contributions’.
Non Parent Carer Someone other than a parent who cares for a child.
Non-residing parent A term that is no longer used when dealing with child support. It was previously used to describe the parent who was paying child support to the other parent. The term ‘payer’ is now used instead. This term may sometimes be used in family law matters and refers to the parent that the child or children do not primarily live with.
Notice of Address for Service When serving documents to someone, or receiving them, an up to date address must be provided by way of a form, submitted to the Court. This does not have to be a residential address but you must have an address at which you can receive documents or notices.
Notice of Appeal A form that is to be submitted to the Court if a person is wanting to appeal (have a Judge review in order to overturn) an Order or Interim Order made by the Court. There must be evidence that there was an error made in the law in the original decision.
Notice of Ceasing to Act A form submitted by lawyers to inform the Court that they are no longer acting for their client.
Notice of Child Abuse, Family Violence or Risk This is a form that must be filed with the Court. It was previously referred to as a ‘Notice of Risk’. These forms are filed with an Initiating Application, Response to Initiating Application or an Application for Consent Orders (seeking parenting orders). This form sets out whether there are allegations of child abuse or family violence or suspected child abuse or family violence. The Court uses this information to notify the child welfare authorities and to make sure that parents, children and other family members are given the assistance they need. Depending on what the outcome is after the case has been screened, the Court may make certain Orders to further inform itself of the alleged child abuse or family violence and to ensure the case is handled appropriately.
Notice of Discontinuance This is a form that is filed with the Court when a person no longer wants to proceed with their Application. This could be in relation to an Initiating Application, Response to Initiating Application, Contravention or Enforcement Application, Application in a Proceeding etc. and it does not need to apply to the person’s entire Application. If one person files this document, it does not mean that the case is automatically dismissed. The other person may be able to continue seeking the Orders set out in their Application or Response.
Notice of Intent (to commence proceedings) If a person wants to proceed to Court in order to resolve issues and disputes that have not been able to be resolved by other means, they must write a letter to their former spouse (or the other parent or carer of the child). This letter is called a ‘notice of intention’. A notice of intention should contain the issues in dispute, the orders that will be sought should the case proceed to Court, a genuine offer to resolve the issues and a nominated timeframe within which the other person must reply.
Notice of Request to Inspect A person may request to view or inspect evidence relevant to their case that has been provided to the Court. To be granted permission to do so, a Notice of Request to Inspect must be submitted and approved.
Notice to Admit Facts Or Notice to Admit, is a form that one person can submit to request that the other person confirm that certain facts or documents submitted are factually accurate and genuine.
Notice to Produce In relation to family law, a party to the proceedings can request that certain documents be produced as part of a persons duty of disclosure and that copies of the documents be provided, or alternatively that the documents be made available for inspection. A request can also be made for specified documents to be produced at the Trial. If a party wishes to request that certain documents be pdocued, such request must be made in writing. Different time limits apply depending on the request that is being made.
Nullity Nullity is the term for an invalid (void) marriage. Nullity is when a Court determines that a marriage should not have been made. It is often referred to as an annulment (but has different meaning to annulment in religious contexts).
Oath An oath is a religious promise to tell the truth. A person who gives evidence in a case must give an oath or affirmation prior to giving evidence. If a person is signing an Affidavit, they must also confirm whether they are swearing (oath) or affirming the truth of the document. If someone is found to have not tell the truth, there are legal consequences that could follow.
Objection A way for a lawyer to argue against evidence being allowed in a case. There are rules about the type of evidence that can be introduced into a case. For example, if there is information contained in a persons Affidavit that is not permissible, then an objection can be made. After hearing from the parties or they lawyers, the Court will make a decision about whether the evidence (written or oral) is allowed to stay in or whether it will be disregarded and struck out. At a Hearing, a party or their lawyer can object to certain questions being asked if they break the rules of evidence. Again, after hearing from the parties or they lawyers, the Court will make a decision about whether or not the question is allowed to be asked.
Offer An offer, or offer to settle, is a way that individuals can work with each other to try and settle the matter is it’s entirety (or in part) without the need to go to Court or if the matter is already at Court, without the need to continue with the proceedings. One person can, on their own or with the help of a lawyer, write to the other person with their proposal as a resolution to their disputes. In Family Law, it is compulsory to prove that attempts have been made to resolve issues and disputes before they are able to go to Court. An offer should therefore be made in parenting matters, property and financial settlements. Even if Court proceedings have commenced, it is recommended that the parties engage in negotiations and make offers in an attempt to resolve the matter. Sometimes, the Court may make orders for the parties to make an offer of settlement.
Offshore/Overseas Assets In Family Law, it is important that both people disclose all assets, including any assets they hold overseas. Assets held in other countries, or offshore, are included in the asset pool (culmination of every asset and liability held by both people, either together or separately). Offshore/overseas assets may include real property, as well as assets such as stock, international bank accounts and pension accounts/entitlements.
Opening Statement Generally, at an interim or final hearing, each party or their lawyers will provide a brief overview of the matter and what they hope to achieve at the hearing. An opening statement should include the orders being requested, any relevant issues to the case, as well as any evidence that is going to be presented to the Court, including expert reports, witness’ names and their affidavits (statements).
Orders In family law, the Court can make orders about parenting arrangements, finances, propoperty, spousal maintenance etc. There are different ways that orders can be made. For example, the Court can make orders that are consented to by all parties, or after hearing and testing the evidence. Orders can also be made on an interim or final basis. For more information see ‘Interim Orders’ and ‘Final Orders’.
Outcome A legal term meaning the result of a case. The outcome can be reached by agreement or by the Court after hearing the evidence. This can include all and any instructions and judgements made.
Outline of Case Document A document to be submitted to the Court that outlines for the Judge, the significant aspects of a case. It should include a chronology set out in table format, listing all the relevant events that happened both before and after separation. It includes a summary of arguments that outlines the issues to be addressed, including relevant facts, case law history and other relevant documentation. Finally, it must also refer to Section 60CC of the Family Law Act, which looks at critical elements such as the mental health of the parties, the risk of abuse, how any orders given may impact children, and any other relevant circumstances.
Parentage Parentage is the origin of something. In family law it relates to determining the identity of a person’s parent or parents.
Parentage Testing Where there is uncertainty as to who the parent/s are, it is vital that parentage testing occur. If there is an agreement, this can be organised directly between the parties. If there is no agreement, an application to the Court will need to be made which requests that one party (generally the father) and child undergo DNA testing. It is common for this type of request/order to be made when a person is seeking child support and the other person denies that they are the father of the child/ren.
Parental Responsibility Parental responsibility relates to all major decisions that need to be made about a child including schooling, medical, health, religion etc.
Parenting App After separation, communication between parents can be challenging, for various reasons. There are a number of great parenting applications that allow parents to communicate, share documents, calendars and track expenses which can make sharing important information relevant to co-parenting easier. Some even allow third party access for lawyers and mediators to help facilitate communication. We often see people using ‘AppClose’ or ‘OurFamilyWizard’.
Parenting Coordinator A qualified professional (either a lawyer or social scientist) who also has specialised qualifications in Mediation and Parenting Coordination. A parenting coordinator often works with parents or carers after the Court process is complete, to help with interpreting the orders, conflict management, to help educate parents about the developmental needs of their children and how the separation can impact them. Parenting coordinators use conflict management strategies when needed and can help parents to focus on parenting and to move away from conflict. It is also possible for a parenting coordinator to be appointed while the court case is ongoing. However, this is less common.
Parenting courses An education program designed for parents, that builds skills, strengthen relationships and increases a parents understanding around the needs of children. A parenting course can be general or targeted to a specific age.
Parenting Orders Also known as Court Orders that detail the arrangements about who is responsible for the day to day care of children.
Parenting Orders Program A Court-ordered program providing FDR services for parenting disputes.
Parenting Plan A written agreement about parenting arrangements.
Parenting Questionnaire A form that must be filed with an Initiating Application or Response to Initiating Application. This form is now only required to be filed if aparty does not file an Affidavit with their Application/Response. When completing the parenting questionnaire, you must provide information about the current parenting arrangements, the child/ren’s schooling, health and wellbeing, as well as details about financial support. You are also required to provide details about any safety concerns and proposals for future parenting arrangements.
Passport Order Where one parent is a citizen of another country or have close family members overseas and the children have passports, the other parent may wish to seek an Order for that parent, or the Court to hold the passports of the children. More commonly, if you believe there is a risk that the parent may take the child/ren out of the country and not return, you may wish to make an urgent application for the children to be placed on the Family Law Watchlist (preveriously referred to as the Airport Watchlist. If the children do not have a passport and one parent wants to be able to travel overseas, that parent can apply to the Court for Orders to be made for both or one of the parents to apply for a passport for the child/ren..
If a parent wants to travel overseas, that parent will need to seek travel Orders. Travel Orders generally involve the travelling parent having to give notice of their intention to travel overseas and to provide an itinerary and contact details as to where the child/ren will be located. If the child/ren are on the Family Law Watchlist, then an Order will need to be made for the child/ren to be removed from the Watchlist prior to travel occurring.
Paternity The biological or adoptive father of a child. In family law, a man is presumed to be the father of a child if one of the following conditions are met: he is named as the father on the child’s birth certificate, he was married to the mother at the time of the child’s birth, he lived with the mother of the child any time between 20 and 44 weeks before the birth of the child, or if the Court has found him to be the father. These presumptions can be overturned.
Post Separation Advice Legal advice sought after separation from a de facto partner or spouse.
Precedent A decision made in a previous Court case that becomes authority. It provides guidance as to how a similar matter should be dealt with in a similar manner.
Pre-Action Procedures The steps taken to try to resolve or at least minimise issues between the parties before applying to the Court. In family law matters, anyone making an application to the Court must be able to prove that they have taken these steps prior to lodging their Application. Pre-Action procedures may include actions such as family counselling, exchanging of documents, engaging in negotiations or attending mediation. There is a requirement that the parties make genuine attempts to resolve the matter before starting Court proceedings. There are cases where the pre-action procedures are not compulsory, such as when a person would be placed at risk, if the application is urgent (i.e. Recovery Order) or if the application to the Court is only for a divorce.
Pre Separation Advice Legal advice sought before separating from a de facto partner or spouse to ascertain the best steps moving forward.
Presiding Officer The Judicial Officer who is dealing with the case on that particular occasion. The Presiding Officer may change each time you attend Court.
Priority Property Pool (PPP) Cases Property matters that are eligible for and designated as a PPP case are assigned to a specific case management list. A matter will be eligible if the issues in dispute are limited and the total net assets (excluding superannuation) are under $550,000 or if the Court finds that it is appropriate to assign the matter as a PPP case based on the particular circumstances of the case or where one or both parties are particularly vulnerable. The aim is to have issues resolved through dispute resolution and where that is not possible, to have the case moved quickly through the Courts.
Priority Property Pool Financial Summary A form to be completed either at the time an Initiating Application is filed if the requisite criteria is met, or once a case has been designated by the Court as a PPP case. It includes details such as your assets, liabilities and superannuation, the contributions of each party as well as their future needs including age, earning capacity, health, living situation and other relevant details.
Procedural Hearing A Judicial Officer (such as a Judicial Registrar) will hear from both parties about what is needed to prepare for the next steps in the Court process. There may be several procedural hearing, sometimes referred to as a Mention or Directions Hearing, throughout the matter to make sure that everything is still on track. At the hearing, the Judicial Officer will make Orders about what needs to happen next for the matter to progress. This could include actions such as lodging documents, obtaining valuations or expert reports, or attending dispute resolution.
Procedural Order An Order given by the Court about the things that need to be done for your matter to progress smoothly to the next stage of the process. As an example, a procedural order could include providing key dates that certain documentation is to be filed. Procedural Orders are legally binding, just like any other Order of the Court.
Process Server A third party who serves (gives) Court documents and any other documents to another person. It is a requirement that documents must be served (given) to the other party. The purpose of serving the documents, is to put the other person on notice about the Court case. An Affidavit of Service will then need to be filed (lodged) with the Court as proof that the documents have been served.
Proof of Service When documents are served (given) on someone who is to appear at, or be aware of a Court date, the person delivering them (by email, by post, in person or other authorised method) must prove that they did serve the documents. This may occur by the recipient signing a document acknowledging receipt, or the person who actioned the service, provides an affidavit stating that they served the documents. See also ‘Acknowledgement of Service’, ‘Affidavit of Service’ and ‘Process Server’.
Property All assets, liabilities, superannuation and financial resources. In family law, property can be owned by one or both parties, or by one party with another party. See also ‘Assets’, ‘Liabilities’ and ‘Financial Resources’.
Property Settlement Division of property between separating couples.
Readiness Hearing A Court hearing before the final hearing that gives the parties a chance to prove that they have completed all the instructions and directions previously given by the Court. A Certificate of Readiness must also be completed prior to the hearing that includes details of the compliance with prior Court instructions, as well as costs already incurred, estimated future costs, the legal and factual issues in dispute that need to be determined by the Court, and other relevant information for the Court to consider.
Reconcile In family law, when two people who had previously separated wish to resume their relationship or marriage and work towards rebuilding their relationship and resolving the issues that led to the breakdown of the relationship.
Recovery Orders An application for Recovery Orders can be made if a child is not returned to a parent as detailed in Parenting Orders/Consent Orders.
Re-Examination If you end up going to a Final Hearing, the parties and their witnesses must file an Affidavit which is the evidence they rely upon in support of the Orders they are seeking. After a person has been cross-examined in the witness box, the lawyer or party who relies on that witness can ask further clarifying questions. This is not an opportunity to ask questions that should have been included in that persons Affidavit; it is to clarify any questions or answers they have given during cross-examination only. See also ‘Cross-Examination’.
Registrar A Registrar is also known as a Judicial Registrar and they assess family law matters that come before the Court and aim to resolve them before they have to go before a Judge in Court.
Registry The geographical location of a Court. For example, the Parramatta Registry.
Relocation The process of moving a child to a new address, in a new town, state or country. It is important to know that in family law, if relocating a child will have an impact on the time they are able to spend with another parent or family member, the Court may not allow the move, or make Orders for the child to be returned (if they have already moved) or preventing the child from moving.
Representation When someone is legally represented by another person, usually a solicitor and/or barrister. Children may be represented by an ICL (Independent Children’s Lawyer). Separating parties may have a family lawyer represent them in negotiations or in Court.
Request to attend by electronic communication If you are expected to attend Court in person, you may be able to apply to the Court to attend via telephone or video. The person seeking to attend other than in person must file a ‘Request to attend by electronic communication’ form. This form indicates that you wish to attend via phone or video link and sets out the reasons why you are unable to attend in person. Your request will be considered by the Court and a decision will be made about whether or not you are able to attend Court via electronic means.
Requisitions Where there is incomplete, inconsistent or insufficient information or documentation provided to the Court, a requisition may be issued (generally by the Registrar) which which requires either one or both parties to provide the missing information, and/or clarify aspects, and/or submit the relevant or additional documentation. For example, if Consent Orders are lodged with the Court, the Court may issue requisitions asking the parties to provide an Affidavit setting out why they say a particular Order is in the best interests of a child.
Residing Parent Also known as the ‘resident parent’, is a term that is no longer used. It was previously used to describe the parent who was receiving financial support from the other parent. The term ‘payee’ is now used instead. The payee may be the biological parent but could also be another family member or carer who receives payment from the payer. In family law, sometimes the person whom the children live with may be referred to as the residing parent.
Resolution Pathways See Family Dispute Resolution.
Respondent A person who is notified of an Application to the Court submitted by someone else in a matter that involves them.
Response to Application in a Case This is the form that is used to respond to a persons interlocutory application. The application was previously called an Application in a Case, but is now known as an ‘Application in a Proceeding’. When a party has filed an Application in a Proceeding seeking interim Orders, you must submit a response to that application. You will need to list the Orders that you agree with as well as any Orders you seek in the alternative. You will need to file an Affidavit at the same time as the Response to Application in a Proceeding.
Response to Application in an Appeal If a person is named as the respondent in an ‘Application in an Appeal’, they must file a ‘Response to Application in an Appeal’. This form is used by the respondent to oppose the requested Orders, to ask the Court for alternative Orders ask the Court to dismiss the application.
Response to Application in a Proceeding A person named in an Application in a Proceeding must submit a response to that application if they wish to be involved in the matter. The Application in a Proceeding will set out what Orders, if any, the person agrees to in the Application in a Proceeding as well as the Orders that you seek on an interim basis. You will need to file an Affidavit at the same time as the Response to Application in a Proceeding.
Response to Divorce If a person disagrees with the information set out in a divorce application, they can submit a ‘Response to Divorce’ form. The response may indicate that the person wishes for the divorce to still go ahead, but that they disagree with some of the information. Alternatively, they may disagree with the separation date and want the divorce process to be stopped. If there is a dispute about whether the parties have been separated for at least 12 months, the parties may need to provide evidence to the Court and there may need to be a Hearing to determine the date of separation.
Response to Initiating Application When you have been served with an Initiating Application, whether relating to children or property or both, you are required to lodge a Response to Initiating Application if you wish to be involved in the matter. Just like an Initiating Application, this document will set out the Orders that you want the Court to make. It is recommended that you lodge your Response to Initiating Application as soon as possible because there are time limits that apply. There are a number of other documents that need to be lodged at the same time as the Response to Initiating Application. These will vary depending on whether the matter involves children and/or property. If you do not lodge / file a Response then the Court may determine your matter without hearing any evidence from you. This is called hearing the matter on an undefended basis.
Restraints See also ‘Injunction’ and ‘Section 68B Restraints’.
Return date In family law cases, the Return date generally refers to the first Court date after an Application has been lodged with the Court. Unless the matter has been listed urgently for determination, such as when a Recovery Order is being sought, the matter is usually heard by a Judicial Reisgtrar and Orders are made about the next procedural steps in the case including setting dates for when the parties needs to file (lodge) documents with the Court or an Order for an Expert Report to be obtained.
Return of Subpoena You may hear this word when a Subpoena has been filed (lodged) with the Court. This refers to the date that the person who the Subpoena was addressed to, is required to either produce (provide) documents to the Court or attend Court to provide documents or give evidence.
Review Generally a review is the review of the Judicial Registrars decision, revisited by a Judge. An Application for Review is required before this can occur.
Rice & Asplund This was the test previously used to determine whether a new application should be allowed to be brought after final orders have been made.The test required that there be a significant change in circumstances.
Risk Screening The assessment process used to identify the likelihood of harm a person involved in family law proceedings or a child or family member relevant to the case has been subjected or exposed to. Harm may include family violence, neglect, child abuse, mental health issues or drug and alcohol misuse. See also ‘Lighthouse Model’.
Rules Sometimes referred to as the ‘Family Law Rules’. The Rules set out the framework for how family law cases are to be conducted from start to finish. The Rules are legally binding, are designed to reduce delays and reflect the most up to date amendments to the family law system.
Rules of Evidence The Rules that govern what evidence is allowed to be used and relied upon at Court. For example, unless the person relying on the evidence personally heard, saw or otherwise perceived themselves, they are not able to include evidence about what someone else heard. Evidence of what someone else saw, heard or otherwise perceived is called Hearsay evidence and unless an exception applies, or the Court gives permission to rely on this evidence, it is not admissible (allowable).
Scale of Costs A schedule in family law legislation that details costs allowable for the different types of legal work and services performed as well as expenses for witnesses. Where a Court finds that one party is to pay for the other party’s legal costs, the Scale of Costs is often used to determine the amount that needs to be paid to them.
Sealed If documents are “sealed”, they will have a Court stamp, which is known as the Court seal. This means that they have been lodged, reviewed and accepted by the Court.
Section 60i Certificate A certificate issued under Section 60i of the Family Law Act, indicating that FDR was attempted or that an exemption applies. Unless an exemption applies, it is mandatory to obtain this certificate in cases involving children, prior to the matter proceeding to Court.
Section 67ZBD The Court may make an Order under this section to request information about whether an agency has any documents in their possession, and if so, to provide such documents. This Order is generally made for matters involving abuse, family violence, or risk etc. Generally, the Court would make the request to Police and child welfare
Section 67ZBE The Court may make an Order under this section to request that an agency produce any documents and provide any information in their possession in matters involving abuse, family violence, or risk etc. Generally, the Court would make the request to Police and child welfare
Section 68B Restraints (have the same effect as an ADVO/Domestic Violence Order (“DVO” in QLD)/Family Violence Order (“FVO” in ACT)/whatever they are called in other states except WA). See also ‘Injunction’.
Section 69ZW Prior to the amendments in May 2024, the Court would make an Order under this section to request information or documents about matters involving abuse, family violence, or risk etc. Generally, the Court would make the request to Police and child welfare.
Section 91B The Court may make an Order under this section requesting that child welfare (in NSW this is the DCJ) to intervene. If child welfare intervene, they become a party to the proceedings.
Section 102NA (allegations of DV/FV or ADVO/FVO/DVO and parties prevented from cross examining each other)
Section 106A Declaration (seeking declaration that person is the parent and is required to pay child support)
Section 107 Declaration (confirming person is not required to pay child support as they are not the parent)
Separated under one roof A term that refers to two people who decide to separate, in terms of ending their relationship, but continue to live under the same roof, meaning in the same house. Although these peoples continue living together, they generally sleep in different beds, are financially independent and do not hold themselves out to be in a relationship. This is relevant when determining if a married couple who are seeking a divorce, have been living separately (not as a couple), despite living in the same property.
Separation One or both people in a relationship communicating an end to their de facto relationship or marriage.
Serve/Service A legal term that means to give or deliver. It is used in reference to giving Court documents to a person. There are a number of different ways you can deliver documents, depending on what they are. For example, a divorce application can be served (given) by hand or by post.
Service To Be Dispensed With Order Where there is urgency, it may be a good idea to ask the Court to make Orders for service dispensed with. This means that you are asking the Court to make a decision as well as the Orders you want, without having to give the other party notice.
Settlement In family law, settlement can refer to parenting, property or financial settlement between the parties. It is the process of dividing the assets and liabilities and generally involves the final arrangements as to “who gets what” upon the breakdown of a marriage or de facto relationship.
Shared Care Arrangements An arrangement where both parents have substantial involvement in a child’s life. This term generally refers to an equal time arrangement.
Shared custody This is a phrase no longer used. See definition of ‘Shared Care Arrangements’ above.
Shared Parental Responsibility This is different to shared care arrangements. Shared Parental Responsibility means that both parents have decision making powers in relation to their child’s education and medical or health care. If they do not share parental responsibility, then they have ‘sole parental responsibility’ for their child/ren.
Shortlisted Order Where there is urgency in having the matter listed, you will need to seek permission from the Court for the matter to be shortlisted. This is where the matter is listed and heard at short notice.
Shuttle Mediation A form of mediation where parties are in separate rooms and the mediator moves between them.
Significant and Substantial Time Both parents are able to play an equal role in all aspects of the child’s life, including the day to day aspects, both difficult and fun aspects.
Significant Change in Circumstances When a person finds themselves in circumstances significantly different from when final Orders were first made. For example, in parenting matters, a person may have suffered a serious injury or illness, family violence, mental health or substance abuse which now poses a risk to the children. It could also be the opposite in that a person now has job security, improved health and proven that substance abuse is no longer an issue and does not pose a risk to the child/ren. The person who claims that there has been a significant change in circumstances since the making of final Orders, may make an application for those Orders to be reviewed and redetermined. Before the Court will hear a new application to review or change the original Orders, they must first be satisfied that there has been a significant change in circumstances. In parenting matters, the Court must also be satisfied that it is in the best interests of the child for them to reopen the case. There are only limited situations where the Court will set aside final property/financial Orders.
Sole custody This is no longer a term used. Instead, if one parent cares for a child 100% of the time, then the child is considered to ‘live with’ that parent.
Sole Parental Responsibility Sole parental responsibility is when one parent is able to make all major decisions about a child’s welfare, safety and well-being without having to first consult the other parent and get their permission. That is, the parent that has sole parental responsibility does not need to obtain the consent from the other parent in relation to the child’s schooling, medical decisions, or religion nor does that parent even need to discuss these decision with the other parent unless there are Orders that the parent with sole parental responsibility needs to inform the other parent and obtain their views before making a final decision.
Solicitor Otherwise referred to as a lawyer. A family law solicitor practices in family law and can help individuals navigate issues relevant to family law. A family law solicitor can provide advice specific to a persons circumstances, as well as helping them to resolve any issues in dispute either through negotiations, at Mediation or if the matter proceeds to Court.
Spend Time With Spend time with Orders are Orders that define what time the parties will spend with the child/children. These Orders will also set out whether the time the parties spend with the children is to be supervised or unsupervised and whether the time will include overnight time and holiday time.
Splitting Order An Order made by the Court to divide one person’s superannuation between two parties. For example, where one person has significantly more superannuation than the other person, an Order might be made for the other person to receive a specific amount of superannuation from that persons fund, thereby reducing the total amount of superannuation held by that person. The superannuation will remain inaccessible to both parties until each person is old enough to access it.
Spousal Maintenance Financial support paid by one person to a former partner or spouse. May be short term (until the financial settlement is complete), long term or both short and long term. See also “Maintenance”.
Spouse Is someone who is or was a partner by marriage, or de facto relationship.
Stand in list (when matter is adjourned for a short period to a time later in the day).
Stay Where there are Court proceedings on foot or Court Orders to enforce, a “stay” refers to putting the proceedings or Orders on hold. A stay may be granted by a Court where a party has appealed a decision and the outcome of the Appeal is yet tobe determined. This means that the Orders made by the lower Court (the Orders being appealed) are put on hold pending the outcome of the Appeal.
Submissions Any written or verbal argument presented to the Family Law Courts which outlines the evidence and reasons why the Court should make the Orders you are seeking. Submissions may include a chronology of the matter, refer to the applicable laws including case law as well as pinpointing the evidence that supports your argument.
Subpoena An Order from the Court that requires a person or organisation to provide evidence or records to the Court in relation to a case.
Subpoena Hearing A Court hearing where the subpoena is issued, complied with (they present evidence or records) or objected to. A person may object to documents being provided to the Court or being made available to the parties for a number of reasons including that the documents are not relevant. Where the production or access to documents is objected to, the Court needs to make a decision about whether the parties should have access to those documents. See also ‘Subpoena Objection’ below.
Subpoena Objection Where a person or organisation has objected to an Order from the Court to provide evidence or records in relation to a case in the Family Court. Or, for the documents subpoenaed to be inspected or copied. Grounds for successfully objecting to a subpoena, if can be adequately argued, can include relevance, confidentiality or professional privilege.
Substituted Service Where the person who is to be served (given) documents, is not reachable, and the Court makes an Order for the documents to be served (given) on someone else who has access to that person. Alternatively, the documents may be served (given) via email, post, or social media for example. An application must be made to the Court for substituted service.
Superannuation Information Request When there are Court proceedings in relation to property/finances, a request can be made to the Court for the Australian Taxation Office (ATO) to provide information about a former partner’s superannuation. The ATO will either confirm that they have located the person and superannuation fund, that they have located the person but cannot locate a super fund or that they have been unable to locate a person.
Superannuation Splitting Dividing retirement benefits between separating couples.
Tender The action of providing documents to the Court.
Tender Bundle A collection of documents provided by the parties (or their lawyers) that are presented to the Court as evidence in support of their case. A tender bundle is often required to be provided to the Court before an interim or final hearing. It should only include the documents that are being relied upon including affidavits, expert reports and other documents relevant to assessing the merits of the case (text messages, emails, photographs, letters etc. that may not have been included in a persons trial affidavit).
Terms of Settlement When a property/financial settlement is reached, the specifics of the agreed upon conditions are detailed in a formal document that is to be approved and finalised by the Court to be enforceable.
Testimony Evidence provided under oath or affirmation. This evidence can be given in writing or verbally. In family law Court matters, a person must put their evidence in writing in the form of an Affidavit (statement). All parties, witnesses and experts that you wish to rely upon at the hearing must file an affidavit. The affidavit is used as that persons evidence at the hearing and is tested through cross examination. See also ‘Cross Examination.
Third Party A non-immediate party to a family law matter. It may be a person, business or organisation. For example, a third party to a parenting matter may be a grandparent, step parent or child welfare agency. A third party to a property matter could be a co-owner of property or a business owned by one of the parties, a trustee, creditor or government agency. An application needs to be made to the Court for a third party to be joined to the proceedings. The Court must be satisfied that it is necessary for the third party to be joined if their rights may be directly affected, and if joining them is necessary to ensure the Court is able to determine all issues that are in dispute.
Third Party Debt Notice If there are Court Orders requiring a person is to pay money to another party or if there is a child support debt that needs to be paid, a third party notice may be issued to a bank or employer to redirect money to the person who is owed the funds, instead of the original recipient.
Transcript A transcript is a written record of everything that was said in Court. All Court events are audio recorded, and if a party wishes to obtain the written version of this recording, they must make a request for the recording to be transcribed. A transcript may be ordered if a person is considering lodging an appeal.
Trial Also referred to as a final hearing, is the “main event” of the family law Court proceedings. It where all of the evidence is presented to the Court, witness testimony is tested and legal arguments are made about why the Court should make the Orders each party is seeking. At the conclusion of the trial, the Judge will consider all of the evidence and make a decision which will become the final outcome (final Orders). Unless a decision is appealed, this is the final stage in the proceedings.
Trial Affidavit A trial affidavit is different to an affidavit filed at the beginning or throughout the Court process. The Court will make trial directions either in anticipation of a matter being listed for or at the time of setting the matter down for a Final Hearing. Part of the trial directions will include the requirement for the parties to file a trial affidavit. At the final hearing, each party is only able to rely on one trial affidavit and an affidavit from each of their witnesses. The trial affidavit must include all evidence a party wishes to rely upon at the final hearing and usually includes the information contained in all previously filed affidavits as well as new evidence since the date of the last filed affidavit. It is important to include all information and evidence in this document because you will not be able to rely on any previously filed affidavits. At the hearing, when it is your turn to give evidence, you will be asked to confirm that the contents of your affidavit is true and correct. It is only at this point that the affidavit becomes evidence.
Trial Directions When a matter is ready to be listed for final hearing, the Court will make Orders setting out a timetable for the filing of documents including all evidence that will be relied upon at the final hearing including any Amended Initiating Application and Amended Response, trial affidavits, witness affidavits, expert reports, financial statements, a joint balance sheet (assets and liabilities), and joint trial plan. The Court will also make Orders for each party to file a case outline and direct that certain things be included in that document such as a chronology, summary of arguments/contentions and a proposed Minute of Final Orders.
Trial Plan A trial plan sets out how the trial will proceed. As part of the trial directions, the Court will usually make an Order that the parties are to prepare a joint trial plan. The trial plan will list all of the witnesses and provide an estimate as to how long each party will require that person to give evidence. For example, how long the applicant will be cross-examined by the Independent Children’s Lawyer and the respondent’s solicitor. It must also include how long each party will take to make their opening and closing submissions. The purpose of the trial plan is to ensure that the matter is able to be completed within the time allocated by the Court for the Final Hearing.
Trust (as in Trust Deeds/Trust Funds etc.) A trust is a mechanism to protect assets and can be used as a tax management method. In property settlements (property division) matters, the assets and liabilities of a trust and the trust deed which details how the trust is operated, who has decision making power and who the beneficiaries are, will need to be disclosed, as this can determine whether the property owned by the trust should form part of the property pool as either a financial resource or as an asset. If it is considered an asset is included as part of the property pool, it becomes available for division.
Unacceptable Risk This occurs when there is a real and significant risk of harm to the children. For example, a parent using or exposing the children to abuse, family/domestic violence, drugs, alcohol or mental health issues may pose an unacceptable risk to the children. You need to demonstrate to the Court that there is an unacceptable risk to the child/children if they are allowed to see that parent unsupervised or even at all. You will be required to provide relevant evidence to prove this and show the Court why a risk to the children exists.
Undefended Hearing This is when the Court hears the evidence and determines the matter without hearing from all parties. This generally occurs when one person has not filed their documents or has failed to engage in the proceedings.
Undertaking This is a written promise to either do something or to not do something. For example, in family law matters you may sign an undertaking not to sell your property until the Court deals with your matter or perhaps it may be an agreement not to contact the other parent. When an undertaking is filed with the Court, it imposes a legal obligation on the person signing it and the consequences for breaching the undertaking are the same as if the person breached an Order.
Valuation Report A Property Valuation Report may be required where the parties cannot agree on the value of their assets. The parties may agree or the Court may make Orders for a mutually agreed valuer to be appointed and to provide a valuation of the property/properties/assets in question. This is an avenue where there is a dispute as to the market value of the property/properties in question. Where there is a business, a valuation report may be required to determine the value of that business. This helps the parties and the Court determine the asset pool.
Variation When one or both parents wish to change the terms of Parenting Orders they may be able to request a variation (change) to the agreement if they can prove that there are significant changes that warrant the variation. See ‘Significant Change in Circumstances’.
Voir Dire In family law matters, this refers to a ‘mini hearing’ (or pre-trial hearing) that occurs before the commencement of an interim or final hearing. The purpose of the voir dire is for the Court to determine whether certin evidence is admissible (permitted) at the interim or final hearing. The benefit of this pre-trial hearing is that it can expedite the hearing so that only the admissible evidence is adduced at the hearing.
Voice of the Child The concept or practice of considering the child’s views and wishes whether during the family dispute resolution process or during Court proceedings.
Withdraw If someone no longer wishes to pursue their family law application in the Court, they can file a Notice of Discontinuance. Even if one party files a Notice of Discontinuance, this does not automatically mean that the proceedings come to an end. The other party can still seeking the Orders set out in their Initiating Application or Response to Initiating Application.
Without Prejudice A term given to information that cannot be used as evidence if negotiations fail and the matter ends up in Court. The goal is for parties to talk freely during negotiations without these discussions or previous offers made in the past being brought as evidence into the Courtroom.
Witness In Family Law a witness may include a child psychologist or social worker (or Family Report Writer) who can provide an account of their observations and professional view as to the best interests of a child. A witness may also be subpoenaed (required to testify in Court) if information they have is crucial to the outcome of the case. For example, a business partner may be required to provide evidence relating to business assets prior to the property settlement being finalised.
