Legal Terms

Legal terms that you may come across when filing or responding to an application

Action –  a dispute that is taken to court. Also called ‘proceedings’, a ‘case’, a ‘matter’ or a ‘suit’.

Address for service  The address where documents can be delivered by hand, post or some other form of electronic communication.

Adjournment – Adjournment is putting off (postponing) a Court event to another time. Generally, hearings will not be adjourned unless unforeseen or exceptional circumstances arise. If an adjournment is granted, the person who asked for it may be ordered to pay the other person’s costs.

Affidavit –  an affidavit is 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 lawyer or Justice of the Peace) by way of swearing on the Bible or attesting to the truth of the contents of the statement.

Affirmation –  a promise to tell the truth when giving evidence in court either in person or by signing an affidavit.

Aggrieved –  the person who has experienced or is in fear of domestic violence and in whose favour a domestic violence order is made.

Appeal –  an appeal is a procedure which enables a person to challenge the decision made about their case by the Court. A brochure on the appeal process is available from all Family Court registries.

Applicant –  the applicant is the person who first comes to the Court asking for orders to be made.

Application –  documents filed to start a court case

Associated Domestic Violence –  this means the domestic violence is directed towards a child, relative or an associate of the aggrieved

Barrister – a lawyer who specialises in court work.

Binding financial agreement –  an enforceable agreement dealing with the division of property, and/or payment of maintenance (child support). It can be entered into before, during or after a marriage.

Breach when the conditions of a court order are broken.

Case  when a person makes an application to a court for orders, that becomes the ‘case’ before the court.

Child Maintenance  Court ordered financial support for a child by a parent when an assessment is unable to be made by the Child Support Agency

Child Support –  financial support for a child paid by a parent. The amount is calculated and or approved by Child Support within the Department of Human Services.

Client – a person who employs a lawyer

Compliance – this means to do as directed, as ordered by the Court or required by the Act, Rules and Case Management Directions. If anyone has not done what is required the matter may be referred to the judge or judicial registrar for consideration of further orders or costs orders.

Compliance Certificate – the Compliance Certificate is a form you lodge to confirm that you have met all the Orders in the Trial Notice, and are ready for the Pre-Trial Conference. There are two compliance certificates: one is for lawyers, the other for self-represented litigants. You must file (lodge) and serve the Compliance Certificate by the date and time specified on the Trial Notice. This date will be no later than 14 days before the Pre Trial Conference date.

Conflict of interest  a clash between the different duties that a lawyer has to clients, the courts, other lawyers or the public.

Consent orders –  if you are able to come to a final agreement about what arrangements should be made for your children, the division of your matrimonial property or financial support for either partner, then you can formalise your agreement without a court hearing. You do this by applying for ‘consent orders’. The Court must approve of the agreement and will then issue consent orders. Consent orders are as binding as any other order made by the Court.

Contested or defended action  A dispute in court where the respondent will not agree with all or part of the application.

Contravention – when a court finds a party has not complied with (followed) a court order, that party is in contravention of (or has breached) the order.

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 interim or final.

Costs  an order made by the court that the unsuccessful party pay the costs of the successful party.

Cross application – the document where the respondent asks the court for different orders to those made in the application. Sometimes known as a ‘response’.

Decree an order made by the Court

De facto relationship  a relationship between 2 adults who live together as a couple and who are not married or related by family.

De fact partner  a partner in a de facto relationship.

Defaulters list –  the defaulters list is a list of cases, managed by a case management judge, in which at least one party has failed to comply with directions to ready the case for trial or has failed to file a compliance certificate.

Deponent  a person who swears or affirms an affidavit

Determination Phase  The determination phase commences once the last resolution event has concluded without agreement /settlement being achieved.

Discovery  This is a process which requires a person to list and make available for inspection by others involved in the case all documents that are or have been in their possession, custody or control that relate to any of the matters in question in the proceedings. You may all agree to informal discovery, or one person may serve a discovery request on the other party. Alternatively, the Court may make an order for discovery. ‘Possession, custody or control’ is a legal term which refers to more than those documents which a person may physically have in their possession.

Dispense with service – a court order which means that you do not have to give your application or other court documents to the other party.

Dissolution of marriage  Divorce, the legal end of marriage

Divorce lists – a Registrar or Deputy Registrar may hear a number of applications for divorce on the same day. The applications to be heard have been assigned a place on a list and are usually heard in the order in which they appear on that list.

Divorce order  an order made by a court that ends a marriage.

Enforcement order  an order made by a court to make a party or person comply with (follow) an order.

Equal shared parental responsibility  this is how the responsibility for the major ‘decisions’ in a child’s life is shared between parents once a family court order is made.   Parents must talk to each other and agree about major long issues including: the child’s education, religion and culture, health, name and changes to living arrangements. Equal shared parental responsibility does not mean that parents spend equal time with the child or children.

Equal time  each parent spend time with a child on an equal basis.

Error of law  a mistake in the way the judge interpreted or applied the law.

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.

Evidence-in-Chief  Evidence-in-chief means the affidavits, annexures and tendered documents used by you in making your case.

Family consultant – a psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce and who is employed by the court to help it make decisions about a child’s living arrangements .

Family Dispute Resolution Practitioner  a term used for a specialised mediator in family law. Family dispute resolution practitioners are registered with the government and can issue a certificate that the parties attempted mediation (this is known as a S.60I certificate). This then allows the parties to start court proceedings if agreement could not be reached at family dispute resolution.

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 Courts  comprise the Family Court of Australia and the Federal Circuit Court of Australia.

Family Law Act 1975  the law in Australia which covers family law matters.

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 Summary a Family Report Summary is a short summary of the main factors of the assessment contained in the family report.

Family Report  – a Family Report covers the findings and recommendations of an assessment of a family. The report is from a behavioural science viewpoint, not a legal viewpoint. It involves interviews with the family members and other people who are important to the child’s or children’s welfare. Family Reports are prepared by family and child counsellors (which include Court Mediators) or welfare officers appointed under the Family Law Regulations.

Family Violence  defined under the family law legislation as 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 Order  an order made under Commonwealth, state or territory legislation to protect a person, including a child, from violence.

Federal Circuit Court  a federal court that hears most simple family law matters, including children’s issues, property settlements and divorce.

Filing  the procedure of lodging a document at a family law registry for placing on the court file.

Final order  an order made by a court to bring a case to a close.

Final Hearing/Trial –  in family law proceedings in Australia the terms final hearing and trial are often interchangeable and are used to refer to the final proceedings of a matter before a court where an issue of law or fact is in dispute and a judicial decision is required. The proceedings are before a Judge who make a decision (orders) and give reasons for the decision (referred to as a judgement.)

Financial Agreements  legally binding agreements that can be made before, during or after marriage or a de facto relationship that set out how property will be divided.

Form a particular document that must be completed and filed at court. Different forms are used for different family law matters.

Hearing  a court proceeding involving opposing parties, where an issue of law or fact is in dispute. A hearing can be procedural (i.e. a mention), temporary (i.e. interim) or final.

In chambers Ii a matter is decided ‘in chambers’ this means the matter is being heard in the office of the Court Registrar and not in an open Court.

Independent Children’s Lawyer a lawyer appointed by the court to represent a child’s interests  (not necessary their wishes) in a case and who assists the court to decide which arrangements are best for the child.

Injunction a court order requiring someone to do something or stopping someone from doing something eg a ‘restraining order’ under the Family Law Act is a type of injunction.

Interim and Procedural Applications Applications for an order other than a final order

Interim and Procedural Hearing Hearing of an application for an order other than a final order. The list of such hearings may be called a ‘duty list’ or a ‘judicial duty list’.

Interim and Procedural Orders  Orders which are made while awaiting the final decision in your case. It is a short term or temporary court order. They remain in place until the court can hear all the evidence at a final hearing or a further order is made.

Intervener a person who asks the Court to make orders to protect their interests, who is not the applicant or respondent.

Irretrievable Breakdown of Marriage when there is no likelihood of getting back together as husband and wife. This is proven after a 12 month period of separation which is a requirement in an application for divorce.

Joint Case Summary Document The Joint Case Summary Document is prepared jointly by the parties following order made at the pre trial conference and filed not less than 2 clear business days prior to trial. (Annexure E of the Case Management Directions).

Judicial Officer a person who has been appointed to hear and decide cases eg a judge

Judge –  the person who will make a final decision about your case if it goes to a trial.

Judgment –  a decision of a Judge, Judicial Registrar or Registrar at a hearing.

Judicial Duty List –  the judicial duty list is a list of interim or procedural applications (i.e. not applications for Final Orders) to be heard by either a Judge or Judicial Registrar.

Judicial Manager – a judicial manager is a Judge or Judicial Registrar specifically appointed to manage an individual case.

Judicial Registrar –  a Judicial Registrar is similar to a judge but has fewer powers.

Jurisdiction  Jurisdiction is the power or authority provided to the Family Court by the Family Law Act 1975 to deal with matters covered by the Act.

Justice of the Peace  a person who has formal authority to witness legal documents.

Litigation  a court dispute.

Local court  a state court where a magistrate hears cases and makes decisions.

Magistrate  the equivalent of a judge in charge of a State Magistrates Court referred to as ‘Your Honour’

Magistrates Court  deals with state law including domestic violence. This court also has the power to make family law decisions in certain circumstances.

Mention  a brief hearing when the court gives a case some attention but not a full hearing.

Notice to admit facts –  a person involved in a case may serve this on the other party requiring that they admit certain facts or the authenticity of certain documents. The notice is drawn up using the Court form known as Form 27. Any admission made in this way only applies for the purpose of the proceedings. The person served with this notice may choose to dispute the fact or document but must do so within 14 days of service of this notice – if the fact or document is not disputed in this time the fact or document is deemed to be admitted.

Notice to produce –  a person involved in a case may serve this notice on the other party requiring them to bring to the hearing certain documents. These documents must be in the “possession, custody or control” of the person served. The notice is drawn up using the Court form known as Form 26.

Oath  a promise to tell the truth on a religious book that is important to the person making the promise.

Order –  the Court has the power to order a person to do certain things. Judicial Registrars and Registrars can only make certain types of orders.

Parental Responsibility  all the duties, powers, responsibilities and authority which by law parents have in relation to children.

Parenting Plan  a written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court. They are not enforceable but are influential if a matter goes to court. Parenting plans made at a later time than a court order can change the court orders.

Parenting Order  a general term for orders that deal with children’s living arrangements and time with each parent, and how the parents exercise parental responsibility.

Parties –  both the applicant and respondent are parties to the proceeding. If a third party is involved or someone is given permission to intervene they also become parties to the proceedings.

Precedent – a precedent is a case which has already been decided which may serve as an example for other similar cases. Precedents are also sometimes referred to as ‘authorities’. Cases which are recognised as precedents are usually published because they provide an explanation of the current interpretation of the law and/or its application to unusual facts in a case.

Pre-Trial Conference –  the Pre-Trial Conference is held by a Deputy Registrar before your case is listed for a trial. It is another opportunity to settle your case. If that is not possible the Deputy Registrar will determine if your case is ready for trial and will set the date.

Procedural Hearing –  a Procedural Hearing is a short hearing conducted by a Deputy Registrar. will make directions as to the next steps in your case e.g. agreed consent orders, mediation, Conciliation Conference.

Procedural orders  Procedural orders are orders of a practical nature which are sought or made in a case to prepare it for hearing or negotiation.

Recovery order –  a court order authorising the location and return of children to a particular person or parent’s care.

Registrar –  qualified 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.

Respondent –  the person who responds to an application by agreeing or opposing the orders sought by the applicant.

Return date/Mention date  the date and time for a case to go before the court. Substantive decisions about the case are generally not made.

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 Cicuit Court Rules 2001.

Sealed Copy –  a sealed copy is a copy of a document which has an original Court seal stamped on it.

Separation  the situation when a married or de facto couple lead separate lives and usually live apart. There is no need to formally register when you first separate.

Separation under one roof  when a couple are separated and leading separate live whilst living in the same home.

Service (of documents) –  Service of documents means to give or deliver documents by one party to another, after they have been filed, in accordance with the rules of the court. Service ensures that all parties have received the documents filed in court. The Court’s  Service Kit sets out what is required.

Settlement  an agreement between the parties to a dispute about how to resolve it without a court decision.

Solicitor  a lawyer who may give clients legal advice, help with legal problems and who may appear in court.

Spousal/de facto maintenance  financial support paid by one spouse or partner in a marriage or de facto relationship (including those in same sex de facto relationships) to the other after separation.

Stalking  a form of harassment when someone follows you around or waits outside your home or workplace.

Status quo  a Latin phrase that means ‘the way things are’. A phrase that refers to the current situation or circumstances.

Stay of execution  a court order that temporarily stops a court judgement from being carried out.

Subpoena – a subpoena is a document issued by the Court which requires a person to go to Court to give oral evidence or bring documents, books or things to the Court which are in their possession, custody or control.

Substituted service  a court order so that you can give your court documents to a relative or friend of the respondent, or put a notice in the paper instead of giving them to the other party if you do not have an address or do not know where he is.

Summary of Argument – the Summary of Argument is prepared by each party to include orders that party seeks from the Court at the trial and outlines statutory considerations, case law and reasons relied on by that party (Annexure F of the Case Management Directions).

Support Worker  someone who provides emotional and practical support.

Technical Medium – telephone link or video link.

Trial – a Trial is the final hearing of a matter before a Judge (or Judicial Registrar). Evidence will be heard by the Judge who at the end of the trial will make a decision and orders which will finalise the matter.

Trial Judge – the Trial Judge is the Judge or Judicial Registrar hearing the Trial of a case.

Trial Notice –  the Trial Notice is a written notice issued by the Court containing orders for the preparation of a case for final hearing and advising the date and time for a Pre-Trial Conference.

Trial Plan –  the trial plan is prepared in draft by the Deputy Registrar at the Pre-Trial Conference to record in broad terms the time required for opening statements, examination-in-chief, cross-examination and re-examination of all witnesses and final submissions. The trial plan is settled by the Judge at the commencement of the final hearing.

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.

Variation  a court order that changes or ends a condition contained in a previous court order.

Witness – a witness is a person who gives evidence to the Court about his or her knowledge of a case.

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