SCB LEGAL
SCB Legal is dedicated to simplifying the law for you. We remove the often cumbersome legal jargon and explain legal terms in an easy to understand manner. Demystifying the law and defining complex legalease is how we make Australian law approachable.
A legal dictionary can prove rather overwhelming, so the team at SCB Legal decided to create our own 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.
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. Similarly, even in our own country, there exists both federal and state legislation. The definitions and application of the legislation may vary, based on the state or territory in which you live. Your individual circumstances will determine what laws apply to you. 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 even more valuable legal terms and phrases.
Apology Letter
An apology letter is a great way to demonstrate to the Court that you’re remorseful/sorry about why you are appearing before the Court. This ‘sheds some light’ on the facts, as to the events leading up to committing the offence/s, and provides the Court with some information about your circumstances.
AVO
AVO stands for Apprehended Violence Order. An AVO is an Order by the Court to protect a person from another person. An AVO can have many different conditions attached to it. An AVO is civil (not criminal) unless and until it is breached. If a person breaches the AVO, then they will face criminal charges. The maximum penalty for breaching an AVO includes a Fine of $5,500 and/or up to two years imprisonment. If a person is charged with a domestic violence offence and/or has pleaded guilty or been found guilty, the law says that the Court must make an AVO unless the Court is satisfied it is not required. There are two types of AVO’s; ADVO and APVO. See below for the difference.
ADVO
An ADVO also known as an Apprehended Domestic Violence Order is an Order protecting a person from another person that they have lived with, are related to, in an intimate relationship with, or who have previously been in any of these situations.
APVO
An APVO is also known as an Apprehended Personal Violence Order. This Order is made for the protection of people who have not had any form of domestic relationship, such as neighbours & work colleagues.
Arraignment
When a person’s matter is moved from the Local Court to the District or Supreme Court, they must be “arraigned”. This occurs on the first Court date in the District or Supreme Court and is where the Judges Associate will read out the charges against you and you will then have to answer and tell the Court whether you are pleading guilty or not guilty.
Brief Orders
If you enter a plea of not guilty, the Court will make brief Orders. This is where the brief of evidence is either served on you if you are self-represented or if you have a lawyer then Service of the brief will usually be on your legal representatives. The brief of evidence will include all of the evidence, including witness statements, DNA, CCTV footage etc. that the Police/Prosecution will rely on to prove their case. Upon the brief being served, your matter will return to the courts for you to confirm whether you are still pleading not guilty and to get a hearing date.
Beyond Reasonable Doubt
This is a much higher threshold than the civil test of balance of probabilities. This is the test in criminal matters. The prosecution has to onus to prove that you are guilty of the offences you are charged with, beyond a reasonable doubt. The test is that there is no other logical explanation that can explain the facts (conduct/cause/outcome), than what the prosecution allege. If there is a reasonable explanation for the facts/evidence and a reasonable possibility that the person is not guilty then that person should be found not guilty. The prosecution relies on the brief of evidence to satisfy this standard.
Character References
Character references are another great way to show the court who you truly are and how this offence/s was out of character.
Committal
Committal proceedings is the process that must be followed when a person commits an indictable offence or strictly indictable offence and the DPP chooses to take over the matter. The Police must give you or your lawyer a copy of the brief of evidence. After the brief of evidence has been served, the DPP must provide the Court with a Charge Certificate. This is where the DPP goes through all of the evidence and determines whether they have enough evidence to prove the charges against you and/or whether there are other charges you should be charged with. After your lawyer receives the Charge Certificate, they can ask the Court for permission to question the witnesses that have given evidence against you. After hearing the evidence, the Magistrate may dismiss your charges at this point. If the Magistrate does not dismiss your charges then the next step is for your matter to have a Case Conference. At the Case Conference, your lawyer and the DPP will discuss your matter and try to reach an agreement. This could include making offers to plead guilty to some of the charges if other charges are withdrawn. After the Case Conference, the DPP has to give the Court a Case Conference Certificate. The Case Conference Certificate has any offers made by the Prosecution (DPP) and any agreed facts if you plead guilty. The Case Conference Certificate is confidential but if you plead not guilty but are found guilty in the District Court or Supreme Court after your Trial, the Judge can look at the Case Conference Certificate to see whether you are entitled to any discounts on sentence. After the Case Conference, the Magistrate will ask if you are pleading guilty or not guilty. If you are pleading not guilty then your matter will be sent to the District Court or Supreme Court for Trial. If you are pleading guilty, depending on the charges and any agreement with the DPP, your matter may stay in the Local Court for Sentence or you may be “committed” / (transferred) to the District Court or Supreme Court to get a date for Sentence. If you plead guilty, then you are entitled to a 25% discount on your sentence. If you plead guilty after you have been committed to the District Court or Supreme Court, then you may still receive a discount on your sentence (usually around 10%-15%). If you plead guilty within 14 days before your Trial then you may still receive a discount on sentence but this will be less than what you would have received if you pleaded guilty sooner.
Cross-Examination
This is where your lawyer has the opportunity to ask the prosecution’s witnesses questions about their evidence. It also enables them to pose questions and statements to them in an attempt to discover the truth. This is also where the prosecutor is able to ask the defence’s witnesses questions about their evidence and to pose questions and statements to them in an attempt to establish the truth.
Disputed Facts Hearing
A disputed facts hearing is when the parties do not agree on the facts alleged by the Police/victim/witness. If you agree to the charges but not the facts, then there will be a hearing where the Court will hear all of the evidence and make a decision about the facts of the case.
DPP
The DPP also represents the State/Territory, just like the police prosecutors. Their role is to remain impartial and to present the evidence to the Court in a fair way. The DPP solicitors are lawyers (this is compared to police prosecutors who sometimes are not lawyers but have done a course which allows them to appear in the Local Court). The DPP is usually only involved when dealing with serious matters. Unlike a police prosecutor, the DPP can appear in the Local, District, Supreme Court and any other higher Courts.
DPP Election
Depending on the seriousness of the offence, the police prosecutor may refer your matter to the DPP. The DPP will look at the charges and evidence and will then make a decision about whether they are going to “elect” to deal with the matter. If the DPP makes an “election”, they will take over your matter after the brief of evidence has been served. Each Court usually has a specific day for dealing with these types of matters. Depending on the charges, the DPP can choose whether to keep your matter in the Local Court or have the matter dealt with by the District Court or Supreme Court.
Examination In Chief
This is where the prosecutor calls evidence from their witnesses (victim/police/observers) firstly and then the defence lawyer will call evidence from their witnesses (offender/observer).
Extension Of AVO
When an AVO is about to expire and if there have been breaches of the AVO, or there is an ongoing need to protect the person, it is recommended to apply for an extension to the AVO. You can do this two ways, by either police or privately. However, you will need to apply well before the expiration of the current AVO.
Hearing
Where a plea of not guilty has been entered, the matter will proceed to hearing. This is where the Court will hear all of the evidence in your case and make a decision about whether you are guilty or not guilty of the charges. It is extremely important to have as much evidence as you can prior to this date.
Indictable Offence
An indictable offence is a more serious charge than a summary offence but is not the most serious charge (see strictly indictable). The laws in NSW have a table that sets out what offences are indictable. There are two types of indictable offences, called T1 and T2. T2 offences are usually less serious than T1 offences. Unlike the summary offences, these charges may be dealt with in the District Court. Usually these offences will only progress to the District Court if the person pleads not guilty.
Pleas
There are two ways you can plead, either by entering a guilty plea or entering a not guilty plea. Even if you have more than one charge, you can enter separate pleas for each charge. Under Australian law, if you enter a plea of guilty at the earliest opportunity, you can receive a discount of up to 25% on sentencing.
Police Prosecutor
The police prosecutor is the person acting on behalf of the State/Territory. They are usually former police officers and sometimes do not have legal qualifications. Their role is to be impartial and to assist the Court in dealing with your matter. They are responsible for proving to the Court that you committed the offence with which you have been charged. If you plead not guilty, they will present evidence to the Court from the victim, complainant, witness and police. Police prosecutors only appear in the Local Court.
Reply
Reply is when you return to the Court to confirm your plea of not guilty or to enter a plea of guilty. If the brief has still not been served or there are outstanding items, then further brief Orders may usually be made and the matter will again be listed for reply.
Representations
Representations are a form of negotiation in criminal proceedings. Your lawyer will write to the Police and seek to have the facts amended, or ask for some or all of the charges to be withdrawn. Your solicitor may make an offer for you to plead guilty to some charges, or less serious charges if the Police withdraw other charges. The representations that your lawyer writes will depend on the circumstances of your case.
Sentencing
Once facts have been agreed upon, either because you accept the facts or because your lawyer successfully negotiated the facts or the Court determined your facts, and plea/s are entered, your matter will proceed to sentencing where the Judge will determine what penalty you should receive. It’s of importance that you are prepared prior to this Court date. It is extremely important to have an apology letter and character references in support of your sentence. Depending on your circumstances, your lawyer may recommend you do a course/s or counselling.
Show Cause (Bail)
If a person is on bail or parole and/or commits certain offences (some firearms, sexual assault and terrorism charges are examples of these types of offences), there is a presumption that the person should be refused bail unless they can show valid reasons why they should not be refused bail. This may include someone’s health, including mental health.
Strictly Indictable (“SI”)
Strictly indictable offences are the most serious offences with which a person can be charged. An example of this type of offence is murder. These offences can only be dealt with in the District Court or Supreme Court. Your matter will be transferred to the District Court or Supreme Court for Trial or Sentence, after the committal process in the Local Court. The actual charge will determine which Court your matter will be heard in.
Strict Liability (Traffic)
It is usually the prosecution’s job (police prosecutor or DPP) to provide the Court with the evidence, in order to prove that a person is guilty of the offence. It is not the defence’s job to prove that the person did not commit the offence. However, for offences involving strict liability, states that the onus of proof is on the defence to prove that they did not commit the offence. These are predominantly traffic related offences.
Submissions
Submissions can be either oral or written, or can be a combination of both. This is what you say that can have a significant outcome toward the judgement you receive. Submissions include giving a summary of the evidence, helpful information for your case, the weaknesses and strengths of the case and why a certain decision should be made.
Summary Offence
A summary offence is where the charges brought against you can only be dealt with in the Local Court. The prosecution cannot choose to have your matter handled by the District Court or Supreme Court. These are less serious charges such as trespassing.
Affidavit
An affidavit is a written statement where you present all your evidence to the Court. It is vital to include all relevant information and evidence in support of your position. If the other side has made false allegations, you will need to respond to them here.
Ex Parte
This refers to the process of dealing with an application in the absence of one of the parties and/or without serving the other party with the application. An example of this is where you are seeking an urgent recovery Order and the serving of the application will cause delay and put the children at risk. You will usually ask the Court to deal with the application and make Orders ex parte therefore being made in the absence of the other party and without giving notice/serving the party with the application.
Onus/Burden Of Proof
This is defined as proving that the allegations are true. In criminal matters, it is usually the prosecution that has to prove you committed the offence. However, in civil cases, the burden is on the plaintiff to prove that what they allege is true.
Service
This is the process of providing the other party with your documents. This provides them with notice of your application, evidence and position. There are many different ways to serve a person with your documents. The way in which you must do this will depend on the type of documents as well as the type of application you are serving.
Standard Of Proof
This is the threshold of proving that the allegations are true. This is the test that the person making the allegations (prosecution in criminal matters and plaintiff in civil matters) must satisfy before the Court can accept that what they say is true. In criminal matters, the standard of proof is beyond reasonable doubt, whereas in civil matters, the standard of proof is on the balance of probabilities.
Subpoena
This is the process of requesting a person to attend the Tribunal/Court to give evidence and/or requesting a person to provide the Tribunal/Court with specific documents. If you believe that a person is unlikely to attend Court and give evidence without the Court ordering them to attend, then it’s a good idea to subpoena the person to attend. If you require documents to support your application then you should subpoena those documents for example you may require documents from the other person’s accountant or psychologist.
In criminal proceedings, the Police will often subpoena the victim and witnesses to ensure they attend Court to give evidence.
You must make an application (form/application is a subpoena) to the Court and the Court must approve this application before the subpoena can be served on the specific person required to attend and/or required to produce documents. The subpoena must be served on the other party and the other party has the opportunity to object to the subpoena if they do not agree with what is being requested. An example of when the other party may object is if the subpoena is not requesting specific documents and is just requesting “all documents held by” the person/company/organisation being subpoenaed. This is known as “fishing” which is not allowed.
When a person objects, their objection must first be dealt with before the person will be made to attend and give evidence and/or before the person is required to produce the documents. If the documents have been produced before the objection is dealt with, you will not be allowed to access the documents until the Tribunal/Court decides that the documents can be accessed.
Substituted Service
Depending on the type of form or application lodged at the Tribunal/Court, the normal way that a person must be served/provided with a copy of the form/application is by having someone hand it to them. This is known as personal service. When a person cannot be located or are avoiding service, and/or all avenues have been exhausted to try and locate the person and/or serve the person, you can make an application to the Tribunal/Court to have the form/application served on the person in a different way for example by serving it on a person they keep in contact with (friend or family), by posting it to them in the mail or by serving it on them via social media. This process is known as substituted service.
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.”
Application In A Proceedings (formerly known as an Application in A Case)
When there are already family law Court proceedings on foot, this is the application you need to complete and lodge if you are seeking Orders in the meantime. An example might be that you now need to travel overseas and the other parent does not agree or there is a risk to your children and you need to ask the Court to change the Orders or perhaps you need money urgently and you ask the Court to make an Order to sell some of the property. An affidavit must also be lodged in support of this application.
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.
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.
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.
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 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 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 and to assist the Court to make interim Orders.
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 Registrar and try to resolve their matter without having to go to hearing.
Consent Orders
Consent Orders are when people have reached an agreement about their matter whether this involves children and/or property. Consent Orders can be made when there is a current Court matter or before the matter goes to Court. Consent Orders are a way to reduce the costs that you may incur if your matter continues at Court or if your matter commences at Court. This written document is then sent to the Court, to be approved. Once approved, the Consent Orders become Court Orders and are legally binding.
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, hear submissions and make a decision about whether a person has breached the Orders. The Court may also sentence the person including Ordering make-up time, making the parent do a course or issuing a fine. 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.
Equal Shared Parental Responsibility
Equal shared parental responsibility is where both parents must come to an agreement about the major decisions affecting a child. One parent cannot and should not make these decisions without discussing these matters with the other parent and getting their consent. For example, if one parent wants to enrol the child into a particular school, they cannot do this without the consent of the other parent.
When family law Court proceedings are commenced, there is a presumption of equal shared parental responsibility. This presumption is rebutted if it is not in the child’s best interests for both parents to have equal shared parental responsibility. For example, there may have been child abuse or family violence (whether directly against the child or exposed to the child).
Expert Report
Where your matter involves complex issues including issues of mental illnesses and/or lack of parenting capacity, it may be best that an expert report be ordered. This is where the parties (and potentially the children) have an interview with a professional (this might be a psychologist/psychiatrist). This expert reviews all of the evidence before the Court including subpoena material and based on that information and 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.
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 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 not dissimilar to a Child Impact Report in that the parents and children usually meet with the family consultant and are interviewed. The family report is generally much more detailed than the Child Impact Report. The family consultant may interview people other than the parties for example the parties partners or parents or any other person involved in the care of the children. The family consultant may also make appointments for the children and the parent to be in the same room together. The consultant will generally observe the interactions between the children and the parent and these observations will form part of the report. The family consultant may contact other relevant people such as family therapists, counsellors, doctors or teachers. This may be to investigate and to substantiate what you say. The family consultant may also have access to the Court documents such as those subpoenaed by the parties. Once the interviews are complete and the family consultant has investigated all matters and are satisfied that they are in a position to prepare a report for the Court, the report will be written which will set out a history/background of the family, any issues in dispute, and risks to the children and any recommendations of what long term/final Orders should be made or how the matter should progress. The report will be provided to the Court and only after the Court makes Orders releasing the report, will the parties and/or their legal representatives have access to the report. Sometimes the family consultant will recommend that the parents should not personally see the report for example where there is a risk that a parent will become angered and harm another person. In this case, the Court may Order that the parents not have access to the report.
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.
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 Statement
Financial statements are 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.
Genuine Steps Certificate
This is a document that must be lodged with any Initiating Application or Response to Initiating Application. The Genuine Steps Certificate confirms that you have made a genuine attempt to resolve the matter by complying with and following the steps required before starting Court. There are exemptions to complying with these pre-action steps including if it is not safe to do so or if the matter is urgent.
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.
Interim Orders
These are Orders that are in place until final Orders are made. Interim Orders are legally binding and are enforceable. Once final Orders are made, the interim Orders will have no legal effect and are not binding. Interim Orders can be made into final Orders.
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. This is called a joint letter of instructions.
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.
Minutes Of Order
Proposed Minutes of Order 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 need to be done. This demonstrates your position at that point in time to the Court and the other parties. Minutes of Order 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.
Parentage Testing
Where there is uncertainty as to who the parent/s are, it is vital that parentage testing be ordered. This involves DNA testing.
Parental Responsibility
Parental responsibility relates to all major decisions that need to be made about a child including schooling, medical, health, religion etc.
Passport Order
Where there are close family members overseas and there are children with passports, it is advisable to seek Orders for the Court to hold the passports of the children. This is actioned pending further Orders if you believe there is a risk that the parent may take the child/children out of the country and not return. If the children do not have a passport and one parent wants to be able to travel overseas, you can apply to the Court for an Order to be made allowing the parent to apply for a passport.
If the other parent wants to travel overseas, it is recommended 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/children will be located.
Recovery Order
When one parent has taken the children and is withholding them without your consent, you can ask the Court to make an Order that the children be returned to your care. Recovery Orders are usually needed when the children are usually just spending time with the other parent or maybe the other parent has turned up to the house and taken the children without your consent. It is important to make an urgent application for the recovery of the children. The longer you wait the less likely the Court will make an Order returning the children to your care. This application is also available to grandparents and aunties/uncles or any other person that the children live with.
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. 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. If you do not lodge / file a Response then the Court may determine your matter without any evidence from you. This is called hearing the matter on a Undefended basis.
Service To Be Dispensed With Order
Where there is urgency, it may be a good idea to have 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.
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.
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.
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.
Spousal Maintenance
If you were financially dependent upon your spouse, you may be entitled to claim spousal maintenance depending on your position. Spousal maintenance is where one person financially supports the other person even after separation.
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.
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. In other matters, you might sign an undertaking to pay your previous lawyer’s their fees before you receive your money from your claim.
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.
Assumption Of Care
These are the terms used when DCJ (formerly known as DoCS and FaCS) remove children from their parents ie the children are assumed into the care of the Minister. Children are assumed to the Minister’s care when there are reasonable grounds to believe that there are serious risks of the children remaining in the parents care, and that these risks are immediate and that there is no other option to protect the children other than to remove them. The children are therefore considered to be in need of care and protection.
Care Plan
This document sets out the risk of harm to the child and the reasons why the child was removed from their parents. It also sets out what care the child has been receiving and what the future plan is for the care of the child including whether there is a realistic possibility of restoring the child to the parents and if so, how this will occur and if not, why not and how often the child will have contact with their parents each year. This document will also include the contact arrangements for the child to have contact with other family members and siblings (if not living with their siblings) as well as addressing the cultural needs of the child and how these are and will be met.
Department of Communities and Justice
The Department of Communities and Justice (DCJ) was previously known as DoCS and FaCS.
Dispute Resolution Conference
A Dispute Resolution Conference also known as a DRC, is where the Registrar, DCJ solicitor, case workers, parents and children’s lawyer will all come together to discuss the matter. This meeting is confidential unless there is a risk of harm to the children. During the DRC, the parties may discuss whether DCJ believes the children can safely be restored to one or both of the parents, or whether restoration is not supported by DCJ and why. The long term plans and needs of the children will also be discussed during the DRC. A DRC is a way of resolving the matter without having a hearing.
Establishment
This is the first phase in care and protection matters. This is where the Court needs to be satisfied that at the time of the children being removed, the children were in need of care and protection. The Court can make this decision either by consent from the parents or following a hearing of the evidence.
After it is established that the children were in need of care and protection at the time of their removal, the next thing the Court needs to determine is whether there is a realistic possibility of restoration (this is known as the second phase of the proceedings).
Final Orders
The Court can make Final Orders by Consent or after hearing all of the evidence. Final Orders will set out what is to happen to the children on a long term basis until they are 18 years old. These Orders will include who is to have parental responsibility for the children. This may be the Minister or children’s long term carer until the children are 18 years old, if the children are not being restored to their parents, or it may be the parents if the children are to be returned to their parents. Parental Responsibility may be jointly held by the Minister and the long term carers or parents for a period of time. Final Orders may also require DCJ to lodge reports with the Courts after 6 months, 12 months, 18 months etc. to provide the Court with an update on the children’s health, wellbeing, contact and placement. The Court will only make Final Orders if they are satisfied with the care plan and long term placement of the children.
Kinship
This is where the child is placed in the care of a relative or someone close to them as opposed to being in foster care. For Aboriginal children this may mean that they are being cared for by a relative (immediate or extended) or by someone that has a cultural and/or community connection which is shared by that child.
No Realistic Possibility Of Restoration
If it is not in the best interests of the child for them to be returned to their parents then there is usually an Order made that there is no realistic possibility of restoration and therefore there is no way that the children could possibly be safely returned to the care of the parents at that time.
Parental Responsibility
When a child is removed, parental responsibility is usually held by the Minister (DoCS/FaCS/DCJ) until the matter is dealt with on a final basis in which case parental responsibility may go back to the parents or to the child’s carer. This means that the Minister (DoCS/FaCS/DCJ) will make all major decisions relating to the children including their schooling, health, contact with parents and other significant people etc.
Placement
After a child/ren has been removed the Court must be satisfied that the long term placement of the children is safe, stable, nurturing and secure. The law says that the first option is for the children to be placed with their parents when it is safe and in the children’s best interests. Only after determining that this option is not in the children’s best interests, will the Court consider other options including family/kinship, friends or foster care.
Realistic Possibility Of Restoration
This is where the Court determines that it is safe for the children to be returned to their parents and that it is in the best interests of the children to be restored to their parents’ care.
Restoration
This is the process of returning the children to their parents’ care.
Risk Of Serious Harm Report (ROSH)
This is a report received by DCJ (formerly known as DoCS and FaCS) which states that the children are at risk. These reports may be made from a person with mandatory reporting obligations for example a school, it could be made by a neighbour, observer, family, friend or a person wishing to remain anonymous. This report sets out what the risks are which could include physical, sexual and/or psychological harm. The children may be exposed to domestic violence, drugs or alcohol use or perhaps they have been neglected or physically abused. These reports are kept on file by DCJ.
If the risks are not serious or immediate then DCJ may investigate and decide to take no action. There may be the possibility of the risks becoming serious and immediate and so DCJ may investigate and become involved in the family’s life to try and address the risks without removing the children or DCJ may remove the children if the risks are serious, immediate and no other option is available to protect the children.
Once a child is removed, all of the ROSH reports form part of the evidence, even if no action was taken at the time DCJ received these reports.
Safety Plan
If DCJ receives ROSH reports and they become involved in the family’s life, they will usually put together a plan to address the safety needs of the children. If the risks are not serious and/or immediate, DCJ will generally try to address the safety needs of the children without removing the children from their parents. This plan will set out what the safety risks are and how they can be addressed. For example, there may be reports of drug use. The safety report may require the parents to participate in drug testing or complete a drug course. If there has been domestic violence, the safety plan may require the victim of domestic violence not to resume a relationship with the perpetrator and/or not to allow that person to have contact with the children. The safety plan may also require the parents to engage with a service provider to help them learn better parenting skills. If the safety plan is not complied with and the risks to the children are serious and immediate then DCJ may decide that this option is no longer suitable and that the only option is to remove the children to ensure their safety.
