Glossary of Family Law Terms

There are so many terms used in Family Law, some of which are difficult to understand! Below is a list of some of the more common terms used.

A

Adoption

A court order granting to a non-biological parent of a child legal and all other responsibilities for a child, creating a permanent legal parent-child relationship.

Advocate

Legal representative in court proceedings.

Affidavit

A written statement of a witness’s evidence during family law court proceedings.

Agreement

A complete understanding between both sides. You can agree on one issue or many. If you reach an agreement with the other side on all issues, you can ask the judge for a hearing to put your agreement on the record.

Allegation

A statement by one party about facts which the opposing party may or may not dispute.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) is the common name for the different ways of settling a disagreement outside the courtroom. ADR varies from a simple, informal discussion among spouses to resolve their dispute, to mediation and collaborative law.

Applicant

The party who commences family law proceedings, normally by filing an Initiating Application and accompanying documents.

Assets

Real property, other property and possessions, money.

B

Barrister

The legal profession is split between barristers and solicitors. Solicitors and barristers are legal advocates although barristers are specialised legal advocates.

Best Interest of the Child

In deciding a dispute about a child, the paramount consideration for the court is the best interest of the child. See section 60CA of the Family Law Act. See also section 60CC.

C

Case

The general name for the matter filed in court. Also called an action or lawsuit.

Chambers

A judge’s private office.

Child Support Assessment

The Child Support Agency (Department of Human Services) may determine that a parent makes regular, periodic payments of child support to the other parent. An Application for an assessment may be lodged through Centrelink Offices.

Child Support

The financial obligation that both parents have to their children pursuant to the Child Support (Assessment) Act 1989.

Child Support Formula

When an application is lodged for an Assessment of Child Support, Child Support Agency (Department of Human Services) will calculate the amount of child support payable in accordance with a formula pursuant to the Child Support (Assessment) Act 1989. An estimate of what the assessment may be may be obtained online: http://www.humanservices.gov.au/customer//cs1670

Cohabitation

Two people living together in an intimate relationship whether married or otherwise.

Collaborative Law

An alternative way to settle disputes in which both parties and their respective lawyers enter into a contract to work together to seek a solution to outstanding matters between them. If the dispute cannot be resolved through the collaborative process, the lawyers engaged for the process may not continue to represent their respective parties.

Conciliation Conference

A compulsory mediation conference which is normally ordered by a judge early in court proceedings aimed to resolve disputes in financial cases.

Consent Orders

Once parties negotiate a settlement of their dispute, they would normally be required to enter into an agreement in writing that reflects the settlement. The written document is sometimes referred to as “consent orders” or “terms of settlement”.

Custody

No longer a legal term pursuant to the Family Law Act but normally recognised as the rights and responsibilities between parents for their children.

D

Decision

A court’s judgment, order or decree that settles a dispute and decides an issue.

Decree and Judgment

The final decision of the court in a family law case. If your case includes an order for money to be paid by one side to the other as part of the property division, be sure that your final decree also says judgment so that you can use collection procedures to get the money if the person does not comply with the order.

De facto relationship

Section 4AA of the Family Law Act defines a de facto relationship as follows:

A person is in a de facto relationship with another person if:
the persons are not legally married to each other; and
the persons are not related by family (see subsection (6)); and
having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Defined Benefit Superannuation Plan

There are different types of superannuation entitlements. Defined Benefit Superannuation Plans (common with public servants) are calculated pursuant to a formula that considers the participant’s projected years of service and final wage compensation. These are known as defined benefits superannuation plans. The superannuation benefits of employees in the private sector normally are contributions-based only, that is, the contributions made over the years by the employee and the employer.

Disclosure

There is a requirement in family law matters pursuant to the relevant rules that each party must make full and frank financial disclosure of all relevant information pertaining to the dispute.

Discovery

The formal and informal exchange of information and documentation between sides in a case.

Dismissal

To dismiss a case without any further consideration or hearing.

Divorce

The ending of a marriage by a court order. An application must be lodged with the Federal Circuit Court.

DNA testing

DNA testing, which is also called “genetic testing,” shows whether someone is the parent of a child. A DNA sample is collected using a swab, similar to a Q-Tip, inside the cheek to pick up cells. Samples are collected from the mother, the child, and the person who may be the father.

Domestic Violence

Violence and/or abuse are frequently present in family law disputes. Normally, the female partner in a relationship is the victim. Each State and Territory in Australia has legislation for the protection of parties from domestic violence.

Domestic Relations

Sometimes, adult persons may develop a close personal relationship (other than a marriage or a de facto relationship), whether or not related by family, living together and one or each of whom provides the other with domestic support and personal care. In appropriate cases, a party in such a relationship may be entitled to a property adjustment pursuant to State or Territory legislation – e.g. Property (Relationships) Act (NSW) 1984 and the Domestic Relationships Act (ACT) 1994.

Due Process

The right to know that something has been filed in court involving you and the opportunity to tell your side of the story.

E

Enforce

To require somebody to do something that is stated in a court order. For example, if a domestic violence protective order states the respondent needs to stay away from the petitioner and the respondent comes to the petitioner’s house, the police may enforce that order to keep the respondent away.

Estate

An estate refers to all of your property, including real estate, investments, bank accounts, business interests, life insurance, retirement accounts, and personal property.

Evidence

Information provided to the court by the parties during the course of a case to assist in the decision-making process. This can include affidavits, documents, videos, and physical objects. There are special Rules of Evidence that control how and what information can be provided.

Ex Parte

Whenever the judge hears from one side only in the absence of the other party and without the knowledge of the other party. Normally, a court would not hear a case ex parte because it is considered unfair and to violate due process. Both parties must have the right to tell the court their side of the story. However, there are some emergency situations when the court might find it appropriate – e.g. the first appearance before the court in a domestic violence hearing.

Exhibit

A paper, document, letter, text message, email, video, or the like used to help prove a case. Sometimes these are attached to and referred in an affidavit but more often these are brought to the hearing.

Expert Witness

Witnesses in court proceedings are normally only permitted to testify about facts, not opinions. An exception exists with witnesses with appropriate expert qualifications and experience in a specific field who may give opinion evidence – e.g. psychologists, engineers, and forensic accountants.

F

Family Court of Australia

The Family Court is a Federal Court which was established when the Family Law Act was passed in 1975. The Court commenced operation on 5 January 1976. Currently, the Family Court and the Federal Circuit Court deal with all family law matters. The Federal Circuit Court in the last ten years has been hearing family law matters. The current situation is that Family Court judges hear the more complex family law matters while judges in the Federal Circuit Court hear the rest of the family law matters, in fact, the bulk of the family law matters. Judges deal with the more complex family law matters.

Family Law Act

The Family Law Act (1975) is a federal piece of legislation that applies throughout Australia except Western Australia. It gives jurisdiction to the court in relation to property disputes and disputes about children between former spouses including former married, de facto, and same-sex spouses.

Family Law

The area of law which generally refers to divorce, dissolution, parenting, and property disputes.

Federal Circuit Court

See Family Court of Australia above.

Family Law Accredited Specialist

The Law Society of NSW accredits some solicitors as specialists in family law if they successfully completed the accreditation scheme operated by the Society. To apply, a solicitor must normally have no less than five years’ experience practicing largely as a family lawyer and must subsequently complete continuing education requirements annually as a specialist.

Final Order

The final decision in a case, which is generally issued by the court after the hearing. In certain circumstances, a party may wish to appeal this order; in other circumstances, a party may wish to subsequently vary this order.

H

Hearing

A court proceeding normally before a judge who hears the dispute.

Hearsay

Hearsay is a statement about facts made by a person other than a direct witness presented to the court as a true statement. In family law proceedings, hearsay evidence is only admitted as evidence in some cases.

I

Interim Order

An interim order is an order made by a court before the final orders. In family cases, these are short-term, sometimes urgent, decisions by the judge about children matters (e.g. who the child should live with, what visitations the other party should have) and property matters (e.g. who should continue to service a mortgage, whether a party should have sole occupation to the former matrimonial home) and maintenance (e.g. spousal maintenance, urgent child maintenance).

J

Judge

The specially trained and qualified person who runs a courtroom, decides all legal questions, and decides entire case in a family law case.

Judgment

The official final decision of a court which includes an explanation of the court’s reasons.

Jurisdiction

The power of the court to make a decision. To make a decision, a court must have jurisdiction over both the people in the case and the issues being decided in the case.

L

Lawyer

A qualified person with a practicing certificate to practice law. You may contact the Law Society of the Australia Capital Territory to find out if a person has a practicing certificate.

Litigation

The court process once the spouses commence court proceedings.

M

Marital Property

Marital property is the property and debt that a husband and wife acquire during marriage for the benefit of the marriage and may include property acquired when the couple lived together before marriage. A married person may also have separate property, which is property and debt from before the marriage that is not considered marital property, or an inheritance or gift. Generally, property and debt acquired after the date of separation is not marital, unless a marital resource was used to acquire it. Determining whether a piece of property or a particular debt is marital or separate can be very complicated and requires legal advice. See AS 25.24.160.

Marriage

The Marriage Act (Cth) 1961 defines a marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

Mediation

Mediation is a voluntary and confidential process in which a neutral third-party facilitator (the mediator) helps people discuss difficult issues and negotiate an agreement. Parties in mediation create their own solutions and the mediator does not have any decision-making power over the outcome. A mediator may or may not be a lawyer.

Noncustodial parent

The parent who doesn’t have custody of the children.

Notice of Appeal

The document filed with the supreme court that gives notice of your intention to appeal. This is the first step of the appellate process, and like all things filed in court, must be served on the opposing party.

Nullity

When a court makes decree of nullity, it negates the marriage between the parties, even though a marriage ceremony may have taken place for example in cases of bigamy, in prohibited relationships, if a party was not of a legal age to marry.

O

Object

Objection

The way that you tell the judge that you think something the other is doing or saying in the case is improper, unfair, or illegal.

Opening Statement

The introductory statement made each party (or their lawyer) at the start of a hearing or trial. Typically, this statement explains the version of the facts best supporting each side of the case, how these facts will be proven, and how the law applies to the case. This statement is not evidence.

Order

A command or direction given by a judge. An order can be in writing or spoken. Violating a court order is very serious and can result in being held in contempt or sanctioned in other ways.

P

Parenting Plan

The Family law Act makes specific provision for parenting plans, agreements that parties reach regarding the future care of their children which may be made in writing, signed by the parties and even registered with a Court. Parenting plans are not legally enforceable although a court is likely to take it into account during a dispute about children. The emphasis in the legislation is that parties agree about the future care of their children rather than the court be required to adjudicate between parents.

Parental Responsibility

There is a presumption under the Family Law Act that both parents will have equal parental responsibility for their children that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues – this is known as equal shared parental responsibility. In some cases, the court orders that one party have sole parental responsibility for the children.

Party / Parties

The technical legal word for the people who are part of the case and have a right to ask the court to rule one way or another. In family law cases, the parties are usually the former spouses although sometimes a third party may become involved as a party to the proceedings.

Paternity

If there is a paternity issue in a family law case that generally means there is some question concerning who the biological father is. If the father disputes paternity, the court will normally order that the parties and the child submit to blood tests to be able to determine the matter.

Prejudice

A legal term which means to injure or damage someone’s rights by some legal action. (For example, the term can be used like this: The applicant is not prejudiced by the court’s decision to allow the respondent to testify by telephone).

Process Server

A specially licensed person who is authorized to serve certain types of legal documents.

Proof of Service

The document proving that the other party was formally served. Generally, you only need a proof of service at the beginning of the case to prove the respondent received Initiating Application and accompanying documents. If you use a process server, the affidavit he or she gives you telling you when the respondent was served will be your proof of service.

Property

Anything that is owned or can be owned, such as real property, land, automobiles, money, shares, etc.

Q

R

Respondent

The person who responds to the Applicant. If a party did not file the Initiating Application to start a court case, and is named in the case, that party is the respondent.

S

Service

Delivering a copy of a legal document to the person on the other side of your case. There are specific rules about how documents must be delivered to a party. Normally, documents must be served on the other party initially in person. A party to the proceedings is not permitted to serve the other party. Normally, a process server will serve the legal documents initially. Once the party served, files documents in response, he/she must provide an address for service and subsequently other documents may be posted to that address.

Settlement

An agreement of all terms reached through negotiation by parties involved in a legal dispute. The parties must then enter into consent orders or terms of settlements which reflect the agreement.

Settlement Conference

A settlement conference is a meeting with a judge before trial to explore ways to settle your issues. The meeting includes you, the other party, and your lawyers (if you have them). The judge may or may not be the same judge you will have if you go to trial. The judge’s role is to try helping you reach an agreement, not to be a decision-maker.

Shared Custody

Normally understood as arrangements between parents to share the care of their children by spending equal time (often week about) or close to equal time with their children. Shared custody is a term frequently used although it’s not a legal term under the Family Law Act.

Sole Legal Custody

No longer a legal term under the Family Law Act. Normally, the term “sole legal custody” is understood as the right that one parent has for the children to “live with” him/her. The fact that a parent has sole legal custody does not necessarily mean that he/she has sole parental responsibility for the children. See parental responsibility.

Spouse

Your husband or wife.

Solicitor

A solicitor is a lawyer. The legal profession is split between solicitors and barristers. Solicitors and barristers are legal advocates although barristers are specialised legal advocates.

Spousal maintenance

Periodic payments that a spouse may pay to another after separation by agreement or as ordered by a court pursuant to the relevant provisions of the Family Law Act, 1975.

Stalking

When a former spouse knowingly follows and repeatedly contacts the other or a family member without consent and that places the victim in fear, a domestic violence order may be imposed.

Stay/Stay of Execution

A court may stop the effect of an order or a Child Support Assessment in some instances, usually temporary –e.g. if a party lodges an appeal from the trial judge’s orders, if a party lodges an appeal in relation to a Child Support Assessment.

Subpoena

A court order for a person to appear in court to give evidence and or to produce documents in his/her possession.

Substituted Service

Normally, when family law proceedings are commenced the applicant must cause that the application and accompanying documents be served by a process server on the other party in person. In some cases, however, a party may apply to serve the documents in an alternative way if the other party’s whereabouts are unknown, for example, by email, or in person on a person such as the opposing party’s parents.

T

Testimony

The evidence from a witness in court proceedings.

Terms of Settlement

Trial

Normally the final hearing in court proceedings.

U

Under Oath

Witnesses must swear or affirm their affidavits and when they give oral evidence in court.

V

Venue

The court where your case should be filed. A party may in appropriate cases seek that the venue be changed – if party commenced proceedings in a venue which because of its geographic location is inconvenient to the other party.

W

Witness

A person called by a party to speak in court, under oath about what he or she knows or has observed that is relevant to the case.