a term no longer used under the Family Law Act. Instead, the law now refers to which party the children will spend time with. That is based on the position that children are not property which one party has custody of and allows the other party to have access to.
Address for Service
the address given by a party to proceedings, where documents can be served on them by hand, post, or other forms of electronic communication.
postpone or defer a court event to another day.
the court has rules about what kind of evidence it will accept. Evidence that a court decides to accept is called “admissible evidence”.
is a written statement filed with the court by a party or witness. It must be sworn or affirmed before an authorised person (such as a Lawyer or a Justice of the Peace). An affidavit should contain statements of fact rather than arguments.
to solemnly promise to tell the truth in court or in an affidavit. An affirmation is made instead of a religious oath.
commonly used to refer to a person who acts on behalf of another person, with the agreement of the other person.
Airport watch list
see “Family law watch list”.
a claim made by one party to a case about something that another party has done, or not done. An allegation needs to be proved in court.
a document referred to in an affidavit that is attached to the affidavit.
is a procedure that allows a party to challenge a decision made the court.
when a party or their lawyer goes to court for a case.
the person who makes an application to the court for Orders to be made.
see “Property pool”.
A lawyer who holds a current practising certificate issued by the Victorian Legal Services Board and has been admitted to the Bar. A barrister’s main role is to represent clients in court. They usually work closely with a solicitor and have limited contact with a client. A barrister can provide advice on strategy and complex legal issues, if requested by the solicitor and client. Also referred to as “Counsel”.
the place where the judge, registrar or magistrate sit. Can be used to describe the judicial officer, for example, “a decision by the Bench”.
Binding Financial Agreement
Commonly referred to as a binding financial agreement, sometimes referred to as a pre-nup or cohabitation agreement, but correctly called a Financial Agreement, sets out the way some or all of a couple’s assets will be divided in the event of separation. These agreements can also deal with spousal maintenance.
this may be the first or subsequent time a case is heard at court. Also referred to as a “mention”.
a copy of an original document that has been confirmed as true and correct by an authorised person, such as a solicitor or justice of the peace.
is a payment that is usually paid by one parent to the other, for the financial support of children after parents separate.
a list of events and the date they took place, usually listed from the first event (oldest) to the last event (newest).
is the date on which two people begin living together as a couple on a genuine domestic basis.
is a dispute resolution process in which the clients and their lawyers enter into a Participation Agreement to negotiate an outcome which does not involve litigation.
Commonwealth Courts Portal
the online portal for the Family court of Australia and the Federal Circuit court of Australia. Also known as Comcourts or “the portal”. The primary way that court documents are filed and orders received from the court.
is a mediation type conference held at the court and run by a Registrar. A conciliation conference aims, if possible, to help the parties reach an agreement in relation to financial issues.
If parties have reached an agreement, that agreement can be approved by the court and become a court order.
Consent with admissions
agreeing to an Intervention Order being made against you and agreeing to the facts included in the application.
Consent without admissions
agreeing to an Intervention Order being made against you but not agreeing with the facts included in the application.
is when a court finds that a party has not complied with or breached a court order.
to transfer a property from one owner to another.
a court order that a party must pay all or part of another party’s legal costs.
fees that are charged by the court to file documents and hear a matter.
a term not longer used under the Family Law Act. Instead, the law now refers to the which party the children will live with. That is based on the position that children are not property which one party has custody of and allows the other party to have access to.
a person is in a de facto relationship with another person if they have a relationship as a couple and live together on a genuine domestic basis, without being married or related to each other.
a person who gives written evidence in an affidavit.
instructions given by a judicial officer to parties in a case.
the power of a judicial officer to make a decision based on the circumstances of a case. Family law is a discretionary jurisdiction meaning that a judicial officer is not bound to make a specified decision based on legislation or previous decisions of the court.
an order made by at the Court that ends a marriage.
Duty of financial disclosure
the ongoing duty that a party has to provide, to the court and the other party, all information and documents about their financial circumstances in a timely manner.
an order made by a court to force a party or person comply with an order.
Equal shared care of children
used to describe when children have equal (or close to equal) amounts of time with each parent after separation,
Equal shared parental responsibility
an order of the court that requires parents to consult each other and make joint decisions about major long term issues for their child, including medical, religious, educational, cultural and living arrangements. Does not include day to day decisions, for example, what a child eats or wears.
verbal or written statements of witnesses, documents and other items used to support a party’s case in court.
Ex parte hearing
is a hearing where one party is not present and has not been given notice of the application before the court. These hearings usually only apply to urgent matters.
documents or objects that are excepted by the court as evidence to support a case.
a psychologist and/or social worker who specialises in children and family issues that may occur after separation.
counselling provided to a couple (and their children) to deal with issues regarding the relationship and issues resulting from a separation.
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.
Family Law Act 1975 (‘the Act’)
the law in Australia which covers family law matters.
Family law registry
a public area at a Family Court and Federal Circuit Court where people can obtain information about the court and its processes and where parties file documents in relation to their case.
Family law watch list
a list held by the Australian Federal Police to stop a person taking a child out of Australia. Also known as the “Airport Watch List”.
Family relationships centres
services funded by the Federal Government to provide information, advice and dispute resolution to help separated couples reach agreement without going to court.
a written assessment of a family by a family consultant. A family report is prepared to assist the court in making decisions in a case about children.
Domestic and family violence occurs when someone tries to control their partner or other family members in ways that intimidate or oppress them. Controlling behaviours can include threats, humiliation, emotional abuse, physical assault, sexual abuse, financial exploitation and social isolation, such as not allowing contact with family or friends.
the process of lodging a document at a family law registry for placing on the court file.
an order made by a court that brings the case to a close.
controlling a person’s ability to get, use or save money and other financial resources. A type of family violence.
contributions by a person in a relationship to the acquisition, conservation and improvement of any property of the parties.
is a document filed with the court that provides a summary of the financial details of the party. This includes information about income, expenditure, assets, liabilities and superannuation. A Financial Statement is required for any case where an order for spousal maintenance is sought.
a decision made by a court about a matter in dispute between the parties after considering the evidence.
Frivolous and vexatious application
an application that is started with no reasonable prospect of success. A frivolous application is an application that is not serious. A vexatious application may be an application that was started to annoy or embarrass the other party.
is an international treaty which provides for children to be returned if they have been wrongly removed from, or retained outside, their country of habitual residence.
to give a document to the judicial officer in court.
the time when the parties present their evidence to the court and make submissions on the law that applies to the case. After the hearing, the court makes a decision in the case.
something that was not personally seen or heard by the person giving evidence but told to them by another person. For example, Jane told Sarah that she heard Fred arguing with Sam. In this example, Sarah's evidence about the argument would be hearsay because Sarah did not see or hear the argument herself.
see “Independent children’s lawyer”
evidence that is not accepted as valid. Inadmissible evidence cannot be considered by the court when making a decision.
an exemption from liability for damage, loss or injury and an agreement to compensate another party for loss or damage.
Independent children’s lawyer (ICL)
a lawyer appointed by the court to represent a child’s interests in the proceedings.
an order made by a court until a further order or a final order is made.
An intervention order is a court order designed to protect a person by placing limits on the behaviour of another person. Intervention Orders are made in the Magistrates' Court.
adding another party into an existing case.
a decision delivered by the court, after all evidence is heard.
a person who has been appointed to hear and decide cases, for instance, a judge, justice or registrar.
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.
Justice of the peace
a person who is authorised to witness the signing of documents such as affidavits and statutory declarations and to certify documents.
a person who has studied law and has been approved to work as a lawyer by the Supreme Court of that state. They must also hold a current practising certificate and have insurance, if they do legal work. To work as a family lawyer, a lawyer must also be approved to work as a lawyer by the High Court of Australia.
Leave of the court
in some cases you need to ask the court for permission to do something. This is called 'seeking the leave of the court'.
something that can be enforced through the legal system.
an order requiring a person or government agency to provide the Court with information about the location of a child.
The Act defines marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'.
Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute.
this may be the first or subsequent time a case is heard at court. Usually the parties first contact with the court, where the judicial officer will give directions to the parties about the steps required to proceed a matter to final hearing.
contributions by a party towards the acquisition, conservation or improvement of any property of the parties, for example, painting, tiling or paving.
a sincere promise to tell the truth, sworn on a Bible or other religious text.
proposal put to one party by another party in a case to try and settle a dispute.
This means that both parents share the responsibility for making decisions about major long-term issues. It includes things like where a child will go to school, major health decisions, and religious observance.
A parenting order is a set of orders made by a court about parenting arrangements for a child or children.
A parenting plan is a written agreement that sets out parenting arrangements for children. The plan is worked out and agreed jointly.
the people or organisations that are involved in legal proceedings.
a decision made by the Court, which may serve as an example for other cases or orders.
is an order made by a court of a practical nature. For example, the court may order the parties to value property, provide disclosure or attend upon a family report writer.
any type of right, interest or thing that a person can legally own, and which has a value.
the assets, liabilities and financial resources that need to be divided in a property settlement.
the dividing of assets, debts and financial resources between a couple after separation.
land or a building that is part of land. Does not include personal goods.
a court lawyer who has been delegated power to perform certain tasks; for example, grant divorces, sign consent orders and decide the next steps in a case.
when using evidence in a case, it must be relevant. This means it must be shown to have a direct relationship to the legal issues being considered in the case.
Under the Family Law Act, moving the children to another town, city, state or country is known as relocation. If a parent moving will limit the time the children get to live with or spend with the other parent or another significant person in their lives, a court may not give permission by way of Relocation Orders.
a person named as a party to a case. A respondent may or may not respond to the orders sought by the applicant.
a set of directions that outlines court procedure, process 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.
a document or form that has been filed with the court and has a court stamp on it.
Separation is the point at which a marriage or de facto relationship ends.
Separation under the same roof
Separation under one roof is 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 is the legal term used to describe the giving or delivering of court documents to another person in a way that satisfies the Court that the person has received them.
when the parties in a case come to an agreement to resolve their dispute before the court makes a decision.
Shared parental responsibility
the principle that both parents contribute to, and are responsible for their children's welfare and upbringing
Sole custody of children
a parent may seek an order from the Court for ‘sole parental responsibility’ which may once have been similar to an order for sole custody. See definition of sole parental responsibility.
Sole parental responsibility
an order of the court that gives one parent the ability to make decisions about major long term issues for their child, without consulting the other parent. Sole parental responsibility can be held by 2 or more people, for example, a mother and her new partner. Sole parental responsibility can be limited to specific issues only, for example, making decisions about a child’s education or medical needs. The Court will only make such an order where it believes that the presumption of equal shared responsibility for the children is not appropriate, i.e. not in the best interests of the children.
A lawyer who holds a current practising certificate issued by the Victorian Legal Services Board. A solicitor is usually responsible for the day to day management of a client’s case. A solicitor usually prepares documentation, advises their client, assists to negotiate a settlement and assists a client to commence court proceedings. A solicitor can represent a client in court, although this is commonly done by a barrister.
Spousal maintenance is where one person will provide continuing financial support to the other after the breakdown of their marriage or de facto relationship. Spousal maintenance can be agreed between the parties or ordered by the court.
a party to a marriage.
Stay of proceedings
an order of the court stopping a court case from continuing, either permanently or temporarily.
verbal or written arguments made to the court about the facts of the case and the law that applies to a case.
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.
is a record of the spoken evidence in Court. A party to the proceedings or their lawyer may request a copy of the transcript from the Court.
is the final hearing of an application made in the Family Court for Orders to be made.
a formal promise made by a person to the court that they will or will not do something. In an Intervention Order case, a promise made to the court, usually agreeing not to assault, harass, intimidate or stalk a protected person. An undertaking is not enforceable, and breach of an undertaking is not a criminal offence.
Vacate a court date
the change of a court date, for example, if you have reached an agreement about interim matters, you may request to vacate the next court date and ask for final hearing date.
when these words are said at the beginning of a conversation or written on a document it means that the information is confidential. Anything the party has said or written cannot be used as evidence against them by the other party in a current or future court case. There are some exceptions to this rule.
person who saw, heard or experienced something and can give a first hand account.
here a witness sits in the courtroom when they are giving evidence.