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Glossary

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Here is a list of commonly used terminology in Family and Relationship Law, accompanied by a brief explanation of what each means in plain and simple English.

A

Abduction of children

Provisions apply for the recovery of children wrongfully taken or held from their place of residence overseas.

B

Best interests of the child

This is the concept underlying the Family Law Act. In all considerations, the best interests of the child are held to be paramount.

C

Child abuse or family violence

There is a statutory requirement for all teachers, doctors and other professional people with whom children are involved to report any evidence of child abuse to Juvenile Aid if there are no proceedings in the Family Court. The court may refer child abuse allegations to the relevant children’s department and investigated by police if recommended.

Child Support Agreements

Parents are able to reach their own agreements about the financial support of their children. Such agreements should be registered with the Child Support Agency.

Children

The Family Court deals children from any sort of relationship — marriage, de facto or non-cohabiting. Children have the right to bring proceedings to the Family Court.

Cohabitation

Parties living together in a married situation.

Collaborative Law

A process where each party agrees to avoid litigation (going to court). Each party has a specialist collaborative lawyer, who advises and advocates for their client while working with the other lawyer and other involved professionals to achieve a conflict-free settlement.

Conciliation conference

A form of mediation that is compulsory and appointed by the court to resolve financial matters.

Consent orders

Where parties are able to reach agreement on issues before the court, such agreements are then filed and sealed by the court in the form of consent orders.

Court counselling

Counsellors who are employed within the Family Court provide counselling to parties involved in Family Court proceedings. Counselling may be ordered by the court under some circumstances.

D

Dissolution of marriage

A divorce decree.

E

Equal shared parental responsibility

In court proceedings, this is assumed to be in the best interests of the child. If a court has ordered it, or is about to, then the court must consider ordering “equal time” or “substantial and significant time”. Parents who have an order for shared parental responsibility must consult each other on “major, long-term issues”.

Equal time

This must be considered by a court where parents have equal shared parental responsibility.

F

Family consultant

The new name for a court counsellor or mediator. Communications with a family consultant are neither confidential nor privileged.

Family counsellor

A counsellor or mediator working outside the court system. Communications with a family counsellor are confidential and privileged.

Family Court of Australia

The court established by the Commonwealth Government to resolve matrimonial issues and deal with all children’s issues.

Family dispute resolution

A process which is mandatory for people wanting to file a parenting application.

Family dispute resolution practitioner

A person authorised to issue a Family Dispute Resolution Certificate (S601). This certificate is required before a parenting application can be filed with court. Communications with such a practitioner are confidential and privileged.

Family Report

A report prepared at the direction of the court in relation to children’s issues. These reports are prepared by accredited professionals to provide objective information for the court’s consideration. The parties can also arrange a family reports by mutual agreement.

Family violence

A restraining order can be used to assist in preventing violence among family members.

Federal Magistrates Court

A court system running parallel to the Family Court that is able to hear family matters. It may offer a cheaper faster alternative to the Family Court.

Fulfilled or unfulfilled parental responsibilities

A new factor that courts must consider when making parenting orders.

H

Hague Convention

International laws that allow for the recovery of children unlawfully brought to, or taken out of, Australia.

Have communication with

Partially replaces the concept of contact.

I

Independent child’s lawyer

A qualified person appointed by the court to act on behalf of children involved in Family Court proceedings. This lawyer acts in the best interests of the child, not necessarily on the child’s instructions.

J

Judge

The person appointed by the court who makes a final decision in relation to issues before the court when the parties are unable to resolve them amongst themselves.

Judicial Registrar

A person the court appoints to resolve issues before the court — usually at a preliminary stage. They deal only with specific issues that are set out in the Family Law Act.

L

Legal aid

Persons who do not have the financial means to bring proceedings to the Family Court may apply to the Legal aid Office for assistance and funding. Funding is approved against specific criteria that includes means testing.

Living with order

An order setting out who the children live with. This also includes any shared parenting arrangements.

M

Magistrates Court

A court of summary jurisdiction that has limited powers to make decisions in relation to matrimonial issues and children.

Major long-term issues

Matters on which parents with shared parental responsibility must consult. These are specifically defined as including: education, religion, health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for him or her to spend time with a parent.

Marriage

The Family Court recognises marriages in Australia and overseas. People who are married may bring a proceeding to the Family Court for adjudication. Any person can bring a proceeding before the Family court if it relates to a child.

Mediation

The purpose of mediation is to assist parties to negotiate their own decisions relating to financial matters and children. Mediation is provided as part of Family Court case management. However, family court proceedings do not have to be in progress for a party to request mediation. Mediation is a voluntary process, but it may be ordered by the court in some instances.

N

Next friend

A person the court appoints to represent a party in proceedings if that party has a disability that would prevent effective self-representation. A next friend may also be appointed for a child.

O

Orders

The court may make orders on either a temporary or interim basis. Failure to comply with Family Court orders can amount to Contempt of Court.

Overseas orders

There is legislative provision for the lodgement of orders made overseas in the Family Court and for their enforcement within Australia.

P

Parent testing procedures

Procedures are available to the Family Court to determine the parentage of a child. These procedures allow for and detail when DNA testing may be considered appropriate.

Parenting plan

A document setting out mutually agreed parenting arrangements. These arrangements are not legally binding.

Parenting responsibility

The duties, powers, responsibilities and authority parents have in relation to their children. This is different from Shared Parental Responsibility and Equal Shared Parental Responsibility, which can only be created through a court order.

Parties to proceedings

Parties may be the husband, wife, children, grandparents or any other person who has an interest in proceedings before the court that relate to either finances or children.

R

Reasonably practical

Part of the test which applies to consideration of whether a parent should be allowed equal time or substantial and significant time with a child.

S

Separation

The date the parties separated from each other in their marriage or de facto relationship. Separation may occur even if the parties continue to live under a single roof.

Shared parental responsibility

When the court order this, decisions about major long-term issues must be made jointly.

Specific issues order

A court order that deals with the care, welfare and development of a child, such as religion, education, sport, change of name and other issues.

Spending time with

The time spent with the children if the children reside with the other parent.

Spousal maintenance

Financial support of a former partner.

Substantial and significant time

The court must consider substantial and significant time when parents have equal shared parental responsibility, but the court is not proposing to order equal time.

Superannuation

Superannuation is now a matrimonial asset and forms part of the matrimonial asset pool.

U

Undertaking

A party to a proceeding may be required to give an undertaking to the court. This has the same force and effect as a court order.

Urgent ex-parte application

Usually both parties must be represented at court. However, under certain conditions, such as abductions or the disappearance of one party, the court can make an exception and conduct proceedings in their absence.

V

Vexatious or frivolous litigant

The court can strike out (refuse to hear) proceedings that are deemed to be frivolous or vexatious.

W

Welfare of the children

In the eyes of the Family Court, the welfare of the children is paramount and represents the guiding principle in its proceedings and decision-making.