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Argent Law

2 Stawell Street, Melbourne (Richmond) VIC 3121 (03) 9571 7444

A

Adjournment

An Order of the Court that a Case return to the Court at a later date.

 

Affidavit

A signed statement given by a person setting out the evidence they rely on in Court proceedings.

 

Airport Watch List Order

An Order of the Court to the Federal Police that a person’s name (usually a child) will be put on the PACE (Passenger Analysis Clearance and Evacuation) System so that the Federal Police will be alerted if that person attempts to leave Australia. The Federal Police will then prevent the person from leaving Australia.

 

Application

A document filed in the Court asking the Court to make Orders – about a Parenting or Property dispute. The person who first approaches the Court is called the “Applicant”.

Examples include an “Initiating Application” which commences proceedings, or an “Application in a Case” which seeks short term Orders for a specific issue that has arisen in the course of ongoing proceedings.

 

Application in a Case

An Application made by a party for urgent or short-term Orders concerning issues that arise during the course of proceedings.

 

B

Barrister

A specialist court room advocate.

 

Binding Financial Agreement

An agreement reached between parties to a de facto relationship or marriage concerning how they intend to treat the assets and liabilities of the relationship or the marriage. The agreement is legally enforceable.

 

Binding Child Support Agreement

An agreement reached between parents of a child (or other persons with parental responsibility for a child or who a child lives with/spends time with) regarding what payments are going to be made between them for the care of the child/children. The agreement is legally enforceable.

 

C

Child Support

Periodic or lump sum payments made by one parent (or person with parental responsibility for a child, or who a child lives with/spends time with) for the care of Children.

 

Child Dispute Conference

A discussion between parents or other people party to parenting proceedings and a Court appointed Family Consultant regarding the care of children. A Child Dispute Conference is ordered by the Court and what is said in the discussion is reportable to the Court and the parties in dispute. The aims of the Conference include resolving any matters in dispute if possible, plus the Family Consultant making recommendation to the parties and the Court regarding both substantive matters (that resolve the dispute) and procedural matters (as to what needs to be done to move the matter through the Court system).

A Child Dispute Conference does not require that the parties to the dispute are in the same room together, especially in circumstances where one or both parties would be uncomfortable and/or unsafe being in the same room as the other party.

Unless ordered by the Court, children are not permitted to participate in Child Dispute Conferences.

 

Child Inclusive Conference

A Child Dispute Conference in which it is Ordered that the Child or Children who are the subject of the dispute are to participate.

A Child Inclusive Conference does not require that the child and their parents (and other parties to the dispute) are in the same room together, and it would be very rare for a Child to be interviewed in the company of a party to the dispute.

 

Conciliation Conference

A Court Ordered mediation between the parties to a property dispute before the Court with a Registrar of the Court. The purpose of a Conciliation Conference is to attempt to resolve the dispute without further litigation.

 

Consent Orders

Orders made by the Court because the parties to proceedings have agreed to the Orders, and the Court approves of the Orders being made.

 

Counsel

A Barrister

 

Court

“The Court” is the Judge of the Federal Circuit Court, Justice of the Family Court or Registrar of the Family Court who makes Orders in family law proceedings. A Local Court Magistrate or Magistrate’s Court Magistrate also has the power to make Orders under the Family Law Act 1975 concerning family law matters.

However, the Local Court would usually only be approached to make Family Law Orders in circumstances where the Federal Circuit Court or Family Court is unavailable to make Orders – such as in urgent Applications to the Court made in remote areas of Australia where it is not practical for the parties to bring an urgent Application in the Federal Circuit Court or Family Court.

 

D

Declaration

An Order of the Court that a state of affairs exists. An example is a declaration of the Court as to who are the parentage of a child after DNA testing has been completed.

 

Directions

Court Orders regarding things that must be done by the parties in order to progress a family law dispute through the Court system.

 

Divorce Order

An Order of the Court that a marriage is legally ended.

 

E

Enforcement Application

An Application made to the Court because a party has failed to do something required under Court Orders. The purpose of the Application is to enforce the Court Orders, and to compensate the innocent party for the costs of them having to enforce the Orders.

 

Expert Report

A Report undertaken by an Expert in a field that is used as evidence in Court proceedings. Often these reports can be undertaken by the Expert on behalf of both parties. Examples include Expert Reports into the value of a property or business; or a Report into the mental health of a parent or parents involved in a parenting dispute.

 

F

Family Consultant

A person appointed by the Court in parenting proceedings. The Family Consultant will have appropriate qualifications such as social worker or psychologist, and they will assist the Court and the parties by conducting Child Dispute Conferences, Child Inclusive Conference, and writing Family Reports.

 

Family Dispute Resolution Conference (FDRC)

A conference that is usually required for all parents to a parenting dispute before Court proceedings can be commenced. The Conference is hosted by a qualified and certified Family Dispute Resolution Practitioner (FDRP), and the purpose of the Conference is to attempt to resolve the Dispute without Court proceedings.

The Family Dispute Resolution Practitioner (FDRP) may determine the matter is not suitable for a Conference, and issue a certificate to that effect so that the parties can ask the Court to make parenting Orders.

 

Family Report Writer

A person who writes a detailed report for the Court setting out the background to a family law parenting dispute before the Court, and making recommendations for how the dispute can be resolved. The Family Report Writer will often be the same Family Consultant who has dealt with the family earlier in the Court proceedings, and if the proceedings go to a Final Hearing, the Family Report Writer can be called as a witness to answer questions of the Court and the parties regarding their report and recommendations.

 

Final Hearing

A hearing (often over two or three days) in the Court after which Final Orders will be made. Final hearings can deal with parenting or property matters, or both. The Orders are intended to be permanent (in the case of property Orders), or to last until a child reaches the age of eighteen (18) in the case of parenting Orders.

A Final Hearing will involve the hearing and consideration of all evidence from all parties and experts. Usually, counsel are engaged for Final Hearings as they are specialist Court room advocates.

 

Final Orders

Orders made by a Court which are Final. This means the Orders are permanent (in the case of property Orders) or until the child reaches the age of eighteen (18) in the case of parenting Orders. Final Orders can be made by Consent (that is, by agreement between the parties and approved by the Court) or by the Judge or Justice after a Final Hearing.

 

Financial Disclosure

The process by which parties to a property case (such as for a property settlement or spousal maintenance) provide to each other information and documentation regarding all their assets and liabilities.

 

Financial Statement

A court document in which the parties to a property case (such as for a property settlement or spousal maintenance) give sworn evidence regarding their assets and liabilities.

 

I

Independent Children’s Lawyer

A lawyer involved in parenting proceedings before the Court who has been appointed by the Court to represent the best interests of the child (or children) who are the subject of the dispute. The Independent Children’s lawyer will be an experienced family lawyer who has been approved by Legal Aid Victoria to undertake work on behalf of a child/children.

 

Injunction

An Order of the Court that a person be restrained from doing something. Examples include an Order preventing a party from selling property in the course of a property dispute, or prevented from discussing with children aspects of parental disagreement in parenting proceedings.

 

Initiating Application

The Application that is filed in the Court in order to commence Court proceedings.

 

Interim Hearing

A short hearing in which a Court will make short term (interim) Orders regarding issues in dispute. Examples include injunctions or the payment of spousal maintenance in property proceedings; or Orders for the who a child (or children) will live with until a final hearing in parenting proceedings.

Interim hearings involve limited issues and limited evidence – as opposed to final hearings which resolve all issues, using all available evidence because final Orders are intended to be permanent (in the case of property Orders); or last until the child is eighteen (in the case of parenting Orders).

 

Interim Orders

Short term Orders – such as an Order for spousal maintenance in property proceedings; or for who a child is to live with during the Court proceedings in the case of parenting proceedings.   Interim Orders can be made by Consent – where the parties agree on the Orders and the Orders are approved by the Court; or can be made after a contested interim hearing where the Court decides the Orders to be made.

 

J

Joint Application for Divorce

An Application for Divorce where the Husband and Wife agree to the Divorce order being made – and they therefore jointly ask the Court to make the Divorce Order. This can be distinguished from a Sole Application for Divorce where only one of the parties approaches the Court and asks for the Divorce Order to be made.

 

Joint Expert

An Expert engaged by the parties to Court proceedings, in which the parties jointly ask an Expert to give evidence in a case. Examples include a Joint Expert Property valuer in property proceedings, or a Joint Expert Psychiatrist in parenting proceedings. A Joint Expert is often appointed under Court Orders.

 

L

Litigation

Court proceedings. In the family law arena, the usual Courts approached are the Federal Circuit Court or the Family Court. Sometimes (but rarely) Local Courts are asked to make family law Orders in circumstances where the parties don’t have access to the Federal Circuit Court or Family Court.

 

M

Mention

A procedural hearing at which the Court makes Orders to move a dispute through the Court system. Such Orders may include Orders for the filing of documents and exchange of financial information (in property proceedings); or the issuing of subpoenae and appointment of an Independent Children’s Lawyer (in parenting proceedings).

 

N

Notice of Risk

A form that must be filed in all parenting proceedings, in which the parties must inform the Court if any allegations of family violence, child abuse, risk of serious harm or serious parental incapacity is alleged in the proceedings. The notice relates to the parties to the proceedings as well as the child (or children) who are the subject of the dispute.

 

O

Orders

A legally enforceable statement by the Court telling the parties to a dispute what they have to do. Examples include Property Orders which tells parties to transfer assets and liabilities between them once a relationship has ended, or Parenting Orders which tells parents (and sometimes other interested parties such as grandparents) what arrangements are to be followed for the care of children.

Orders can be interim Orders (short term); or Final Orders (permanent in the case of property proceedings, or until the child is eighteen in the case of parenting proceedings).

Orders can also be procedural – and deal with things to be done by parties as a matter moves through the Court system); or substantive – and deal with the rights and responsibilities of parties to a dispute.

Orders can be made by Consent – which means they agreed upon between the parties and approved by the Court; or they may be made by the Court after a contested hearing at which the parties to the dispute sought different Orders be made.

 

P

Paramountcy Principle

The principle that in parenting proceedings, the Child’s (or Children’s) best interests is the focus of the proceedings, and all Orders must serve the Childs’ best interests.

 

Parenting Plan

An agreement between parents (and sometimes other people involved in a parenting dispute such as grandparents) as to what arrangements are to be put in place for the care of a child (or children). Issues to be covered in a parenting plan often include parental responsibility for the child (or children), who the child will live with, and how much time the child will spend with their non-resident parent.

 

Parenting Orders

Orders made by the Court involving parents (and sometimes other people involved in a parenting dispute such as grandparents) as to what arrangements are to be put in place for the care of a child (or children). Issues to be covered in a parenting plan often include parental responsibility for the child (or children), who the child will live with, and how much time the child will spend with their non-resident parent.

Parenting Orders can be made by Consent – which means the parents (and other parties to the dispute) have agreed on the Orders and the Orders have been approved by the Court; or the Orders can be made by the Court after a contested hearing.

Parenting Orders can be Interim Orders (ie short term); or Final Orders (ie until the Child is eighteen).

 

Parenting Proceedings

A court case relating to a dispute about the care of children. Issues in Parenting Proceedings can include a variety of matters such as who will have parental responsibility for a child, where a child shall live, and how much time a child will spend with a non-resident parent.

 

Property Pool

The assets and liabilities to be divided up between parties to a property dispute.

 

Property Orders

Orders made by the Court involving parties to a property dispute regarding the distribution of assets and liabilities of the relationship.

Property Orders can be made by Consent – which means the parties to the dispute have agreed upon the Orders and the Orders have been approved by the Court; or the Orders can be made by the Court after a contested hearing.

Property Orders can be either Interim Orders (ie – short term) or final Orders (ie permanent).

 

Property proceedings

A Court Case relating to a dispute about how assets and liabilities of a relationship are to be divided. Issues in property proceedings include a variety of matters, including identifying property pool, dividing the property, spousal maintenance and whether orders need to be made for the parties to maintain the assets whilst the Court Case is ongoing.

 

R

Recovery Order

An Order of the Court directed to the Federal Police that they are to locate and recover a child or children. The Order will usually permit the Federal Police to request the assistance of the Police from the states and territories of Australia to locate and recover a child.

Recovery Orders are urgent by nature, and are usually short term (interim) Orders.

 

Response

The document filed by a person who has been served with an Application by another person to the Court. The person receiving the Application is called the “Respondent” and their “Response” sets out the Orders they seek from the Court.

Examples include a “Response to Initiating Application” or “Response to an Application in a Case”.

 

S

Spousal Maintenance

Periodic or lump sum payments made by one party to a property dispute (Husband or Wife – including de facto Husband and de facto Wife) to the other.

 

Subpoena

A court Order to a person or organisation to provide documents, evidence (or both) to the Court.

Examples include subpoenae to banks to provide banking records in property proceedings; or to a school to provide schooling records for a child (or children) in parenting proceedings.

 

Superannuation Splitting Order

An Order of the Court to a the Trustee of a Superannuation Fund that the trustee is to divide a member’s superannuation as part of property Orders.

 

U

Undertaking

A statement given by a party to proceedings that they will do certain things, or not do certain things. Examples include an undertaking that a person will not sell assets in property proceedings; or that a parent won’t disparage the other parent in parenting proceedings.

Once lodged in the Court, undertakings can be relied on by the parties as a basis of Orders. Examples include an undertaking by a grandparent to supervise a parent with their child in parenting proceedings – in circumstances where the Court is only willing to make Orders for a parent to spend time with a child if they are supervised by the grandparent.