The ABC’s of Family Law
Abuse – in relation to a child, means (for the purposes of the Family Law Act 1975):
- An assault, including a sexual assault, of the child; or
- A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
- Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
- Serious neglect of the child.
Address for service – the address given by a party where documents can be served on them by hand, post or some other form of electronic communication.
Adjourn – defer or postpone a court event to another day.
Affidavit – a written statement by a party or witness. It is the main way of presenting the facts of a case to the court. An affidavit must be signed before an authorised person (such as a Solicitor, Commissioner for Declarations or Justice of the Peace) by way of swearing on the Bible or attesting to the truth of the contents of the statement.
Appeal – a procedure which allows a party to challenge the decision made by a court.
Applicant – the person who applies to a court for orders.
Application in a Case – the requisite form used to make an application in a case which has already commenced. It should be used by any person when seeking interlocutory, interim or procedural orders, if the orders were not sought in the original Initiating Application or Response.
Case – when a person makes an application to a court for orders, that becomes the case before the court.
Case Assessment Conference – the first major court event in the Family Court for most people who are seeking financial orders. It is conducted by a registrar. It provides an opportunity for the parties to reach an agreement, with the registrar’s assistance.
Child Dispute Conference – a meeting with a family consultant. The conference is ordered by the Court and includes only the parties (children and lawyers are excluded). The conference gives the Court a preliminary understanding of the family situation and what issues are in dispute. The conference focuses on what the children need, and can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. The main purpose of the conference is to conduct a brief and preliminary assessment, but there may also be an opportunity to attempt to negotiate any or all of the issues if time permits.
Child Inclusive Conference – A Child Inclusive Conference is a meeting with a family consultant that is ordered by the Court and includes the adults and children involved in the matter. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement.
Children’s contact centres and services – aim to minimise a child’s exposure to conflict or unsafe situations. They provide safe, neutral and child-focused venues for facilitated visits and changeovers to occur between children and their parents and other significant cant persons in the child’s life. They assist parents who are experiencing conflict to manage these arrangements.
Children’s Contact Services work with families to encourage positive interaction between children and their parents, and to support the strengthening of these relationships. Over time, and where possible, parents are encouraged to move to self-management of their arrangements for spending time with the child.
Conciliation Conference – a meeting which provides an opportunity for parties to make a genuine effort to settle their dispute without the need for further court events, including a trial. A Conciliation Conference usually occurs after a Case Assessment Conference if there is disagreement about financial issues, although in some circumstances, parenting issues can also be considered. Where an order has been made for a Conciliation Conference in the Family Court, attendance by the parties is compulsory.
Consent order – an agreement between the parties that is approved by the court and then becomes a court order which is legally binding and enforceable.
Contravention – when a court finds a party has not complied with (i.e. “followed”) a court order, that party is in contravention of (or has “breached”) the order.
Court fees – the court fees are set by the Federal Government regulations – Family Law (Fees) Regulations 2012.
Court hearing – the date and time when a case is scheduled to come before the court.
Court order – the actions the parties or a party must do to carry out a decision made by a court. An order may be either interim or final.
Divorce order – an order made by a court that legally ends a marriage.
Duty of disclosure – Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised. As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control.
Duty list – the first time that people involved in a case appear in the Federal Circuit Court (i.e. the First Court Event). On this day, the Judge may:
- Give directions (which are instructions on the next step/s that are required in a case);
- Approve proposed consent orders (which is an agreement that has been agreed to, and provided by, the parties);
- If time permits, conduct an interim hearing (which is a short hearing about an urgent or defined issue) and make interim orders;
- Make final orders for certain types of applications; and/or
- Set a date for a final hearing.
The Duty List also provides you with an opportunity to define the issues that are in dispute and, if possible, reach an agreement. Enforcement hearing – allows a person is owed money (i.e. the payee) to obtain information about the financial situation of the person who owes the money (i.e. the payer).
Enforcement order – an order made by a court to make a party or person comply with (i.e. “follow”) an order.
Ex parte hearing – a hearing where one party is not present and has not been given notice of the application before the court; usually reserved for urgent cases.
Family consultant – a psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce.
Family Dispute Resolution – a process whereby a Family Dispute Resolution Practitioner assists people to resolve some or all of their disputes with each other following separation and/or divorce.
Family Law Act 1975 (‘the Act’) – the law in Australia which covers family law matters.
Family Law Courts – comprise the Family Court of Australia and the Federal Circuit Court of Australia.
Family law registry – a public area at a Family Law Court where people can obtain information about the court and its processes and where parties file documents in relation to their case.
Family Report – a written assessment of a family by a family consultant. A Family Report is prepared to assist a court to make a decision in a case about children.
Family violence – For the purposes of the Family Law Act 1975, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence or is otherwise exposed to family violence. Family violence may also amount to child abuse in some circumstances. Other examples of behaviour that may constitute family violence include (but are not limited to):
- An assault (including sexual or other sexually abusive behaviour);
- Repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally causing death or injury to an animal;
- Unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
- Preventing the family member from making or keeping connections with his or her family, friends or culture; or
- Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Family violence order – an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
Filing – the procedure of lodging a document at a family law registry for placing on the court file.
Financial Statement – this document provides information about a party’s present financial circumstances, including their average weekly income, expenditure, assets, liabilities and financial resources etc. A Financial Statement must be filed by a party to a financial case, such as property settlement, spousal maintenance, child support or financial enforcement with the party’s Initiating Application or Response.
Final order – an order made by a court to bring a case to a close.
Form – a particular document that must be completed and filed at court. Different forms are used for different family law matters.
Indemnity costs – where the conduct of a party warrants it, the Court can award all costs that a party reasonably and properly incurred. These costs are known as indemnity costs.
Independent Children’s Lawyer – a lawyer appointed by the court to represent a child’s best interests in a case.
Initiating Application – the requisite form used to seek final orders in the Family Court or the Federal Circuit Court of Australia. Interim or procedural orders can only be sought in this form if you (the applicant) are also seeking final orders. There are also other supporting documents which must be filed together with the Initiating Application, depending on the matter and the issues in dispute.
Interim order – an order made by a court until another order or a final order is made.
Judgment – a decision by a court after all the evidence is heard.
Judicial Officer – a person who has been appointed to hear and decide cases; for instance, a judge.
Jurisdiction – the authority given to a court and its judicial officers to apply the law. For example, the courts have jurisdiction under the Family Law Act 1975 in family law matters.
Less Adversarial Trials – The Family Court takes a less adversarial approach to trials. This means a trial:
- Is flexible so that it can meet the needs of your particular situation;
- Is anticipated to be less costly compared to traditional trials and will save you time in court;
- Is inclusive in so far as your involvement in the process;
- May be less formal than is usually the case in court; and
- It is the judge, rather than the parties or their lawyers, who decides what information is put before the Court and how the trial is run.
Magellan – Cases that come to the Family Court that involve allegations of sexual abuse and/or serious physical abuse of a child go into the Court’s Magellan program. The Magellan program is for cases involving the most vulnerable children.
Notice of Risk – a mandatory form which must be used by any person who files an Initiating Application or Response seeking parenting orders on or after 12 January 2015. It is also the prescribed notice when allegations for the purposes of subsections 67Z(2) or 67ZBA(2) of the Family Law Act 1975 are raised on or after 12 January 2015.
Parental responsibility – the responsibility of each parent to make decisions about the care, welfare and development of their children. These responsibilities may be varied by agreement or by a court order.
Parenting plan – a written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.
Party or parties – a person or legal entity, such as a corporation, involved in a court case; for example, the applicant or respondent.
“Party-party” costs order – Usually, parties who are involved in family law proceedings pay their own legal costs. However, there are exceptions to this. The Court may order one party to pay the legal costs of another. These are known as “party-party” costs.
Precedent – a decision made by a judicial officer, which may serve as an example for other cases or orders.
Procedural order – an order made by a court of a practical nature. For example, the court may order the parties to attend family dispute resolution.
Recovery order – an order of the Court that can require a child be returned to a:
- Parent of the child;
- Person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- Person who has parental responsibility for the child.
A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.
A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child. Registrar – a court lawyer who has been delegated power to perform certain tasks; for example, grant divorces, sign consent orders and decide the next step in a case.
Reply – used by a person (i.e. the applicant) who has filed an Initiating Application to which the other party (i.e. the respondent) has filed a Response to Initiating Application seeking orders about a new subject matter; and the applicant wishes to reply to those orders. For example, if the application is about children and the respondent files a Response to Initiating Application seeking property orders, this form would be used to respond to the claim for property orders.
Respondent – a person named as a party to a case. A respondent may or may not respond to the orders sought by the applicant. Response – the requisite form used in the Federal Circuit Court to respond to an Initiating Application in family law and child support proceedings.
Response to an Initiating Application – the requisite form used in the Family Court if you (i.e. the respondent) either oppose the orders sought or ask the Court to make other orders, including interim or procedural orders.
Rules – a set of directions that outlines court procedures and guidelines. The rules of the Family Court are the Family Law Rules 2004 and the rules of the Federal Circuit Court are the Federal Circuit Court Rules 2001.
“Separated but living under one roof” – when a husband and wife separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.
Service – the process of sending or giving court documents to a party after they have been filed, in accordance with the rules of court. Service ensures that all parties have received the documents filed with a court.
Subpoena – a document issued by a court, at the request of a party, requiring a person to produce documents and/or give evidence to the court.
The Child Responsive Program – involves a series of meetings between a family consultant, the parents (or other carers), and usually the child/ren. The program focuses on the child/ren’s needs and the aim is to help parents and the Court understand what the child/ren need and how the Court can best deal with the matter. When parents cannot agree on the best arrangements for the child/ren, the case will proceed to a Less Adversarial Trial, and the same family consultant will assist the Court with expert opinion and evidence about the child/ren and the family.
The Commonwealth Courts Portal – provides users with secure web-based access to information about cases that are before these courts. Through this service, registered users can:
- Keep track of their cases;
- Identify documents that have been filed;
- View future court dates;
- Electronically file certain documents; and
- View outcomes and any orders that have been made.
Third Party Debt Notice – Under this Notice, the Courts direct a third party to pay money that the third party owes to the respondent to the payee instead of the respondent. Typically, the third party is an employer of the payer or a bank or building society where the payer has money in an account.
Transcript – a record of the spoken evidence in a court case. All court hearings are recorded, except uncontested divorce hearings. The court does not order transcripts in all instances and does not provide transcripts to parties. If a party orders a transcript, they will be responsible for the costs.
Undertaking – a promise to the Court which is as binding as an Order of the Court. For example, where a person gives an undertaking that they will take a certain action, the Court will require that person to take that action as if the Court itself had ordered the person to take the action. A breach of an undertaking is treated as the same as a breach of an order.
Warrant of arrest – a form of Warrant which is prepared by the Court as a precedent for use when a Court has ordered that a person be arrested and brought before the Court. For example, a warrant of arrest may be necessary to ensure that an alleged offender will attend before a Court to be dealt with for an alleged contravention.
If you would like to know more, please contact us on (07) 3211 4920 to arrange an initial appointment today.