There are many confusing and interchangeable terms used in the Family Law jurisdiction, some of which are also increasingly being used in the media and social discourse. This can result in legal terminology being commonly misunderstood, used incorrectly or out of context.
One of our experienced Family Law Solicitors, Rhiannan Earl, Associate Family Lawyer, in our Sydney office, breaks down some of these buzzwords:
Apprehended Domestic Violence Order (“ADVO”)
A Court Order protecting a person from someone who they have been in a domestic relationship with from further assault, stalking, harassment or intimidation. Police can apply for an ADVO on an individual’s behalf, or the individual can make a private application.
Binding Child Support Agreement
An agreement between parents outlining the amount of child support that will be paid by one parent to another which has the effect of overriding a child support assessment. These agreements are voluntarily entered into by the parents of a child and have strict legal requirements which they must comply with. The must be drafted by a Solicitor and both parents are required to obtain independent legal advice.
Binding Financial Agreement
An agreement between ex-spouses which outlines the division of assets, liabilities and superannuation post-separation. These agreements are voluntarily entered into and have strict legal requirements which they must comply with. The must be drafted by a Solicitor and both parties are required to obtain independent legal advice.
Child Abuse
- An assault, including a sexual assault, of the child.
- A person involving a child in a sexual activity with them or another person in which the child is used, directly or indirectly, as a sexual object, and where there is an unequal power dynamic in the relationship between them and the child.
- Causing a child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to, or exposed to, family violence.
- Serious neglect of the child.
Child Impact Report
A report prepared following interviews with the family by a Court Child Expert, or privately funded psychologist, which provides the Court with recommendations of what arrangements may be in a child’s best interests.
Child Maintenance Order
A Court Order which requires a person to pay child support for the maintenance of a child or children. These types of orders can be made either by consent or by judgment of the Court.
Child Support
The financial support provided from one parent to the other for the costs of care of the children post-separation. Payments of child support are managed by the child support agency which operates within Services Australia. A child support formula is applied to determine how much child support is payable. Either parent can be eligible to receive or liable to pay child support, provided they meet the minimum care threshold, irrespective of whether they have the children in their care most of the time.
Coercive Control
Patterns of abusive behaviour against another person, which over time creates fear and takes away the person’s freedom and independence. This dynamic almost always underpins family and domestic violence. Coercive control can involve physical and non-physical abuse. Non-physical abuse is sometimes thought of as less serious, but this is not the case.
Consent Orders
Formal orders made by the Court in accordance with an agreement reached between parties. Consent orders can be in relation to parenting arrangements for children and/or the division of property.
Court Child Expert (“CCE”)
A psychologist and/or social worker employed by the Court, who specialises in child and family issues that may occur after separation and divorce, to assist the Court in determining appropriate and child focused parenting arrangements.
Custody
The word “custody” does not feature in the Family Law Act 1975 (Cth), which is the law underpinning the Family Law jurisdiction. When individuals use this word, they are often referring to parenting arrangements, live with or spend time with Orders.
De facto Relationship
A relationship between two persons of the same or opposite sex who are not legally married to each other, are not related by family and having regard to all the circumstances of their relationship, they are a couple living together on a genuine domestic basis.
Deputy Registrar
A judicial officer of the Court who exercises both judicial and administrative functions, for example, granting of divorces and making orders by consent.
Duty of Disclosure
The obligation of parties in a Family Law dispute to make available to the other party all relevant documents and information to a fact in issue in the proceedings. The duty of disclosure applies to both parenting and property settlement matters.
Divorce Order
An order made by the Court to terminate a legal marriage. The divorce order generally becomes final one month and one day after it is made by the Court at the divorce hearing.
Family Court
Comprises of Divisions 1 and 2 of the Federal Circuit and Family Court of Australia (formerly the Family Court of Australia and the Federal Circuit Court of Australia separately).
Family Report
A lengthy report prepared following interviews with the family by a Court Child Expert, or privately funded psychologist, which provides the Court with recommendations of what arrangements may be in a child’s best interests. This is a more comprehensive and detailed report than the Child Impact Report.
Family Violence
Means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family 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 may also amount to child abuse.
Family Violence Order
An order (including an interim order) made under a prescribed law of a State or Territory of Australia to protect a person from family violence.
Final Hearing
A final hearing is the final determination of the case by a Judge. The duration of a final hearing will vary from one day to several days, depending on the complexity and number of issues in dispute. The Judge will hear each party give their evidence and the witnesses will be cross examined by the opposing party.After the final hearing, the judge will make a decision and deliver reasons for judgment. This may be on the same day, or if they need more time to consider the case, they will reserve their decision and deliver it at a later date.
Independent Children’s Lawyer (“ICL”)
A lawyer appointed by the Court to represent the interests of a child and to form an independent view of the child’s best interests, and to present those views to the Court.
Interim Hearing
A Court event where a decision can be made about particular issues in dispute in the case on an interim or interlocutory basis, by a Judge or a Senior Judicial Registrar. At the interim hearing, the Judge or Senior Judicial Registrar will consider the material filed by each party and hear submissions in relation to the interim issues in dispute. Parties will only be cross-examined during an interim hearing in exceptional circumstances.Interim orders are effective until the matter can be finally determined. The Court aims to limit the number of interim hearings and instead focus on finally determining the case as early as possible.
Judge
A person who has been appointed to hear and decide disputes where the parties cannot reach an agreement between themselves.
Judicial Registrar
A judicial officer who has been delegated power to perform more complex tasks than deputy registrars, for example, deciding the next procedural step in a case.
“Live with” and “spend time with” Orders
Term used in final parenting orders to indicate who a child primarily lives with. These new plain English terms replace “custody”, “access” and “contact” when describing parenting arrangements for children.
Property Settlement
The process of dividing assets, liabilities and superannuation between separated spouses.
Parenting Plan
An agreement between parents which is in writing, signed and dated, which outlines the care and living arrangements of a child. Parenting Plans are non-binding and unenforceable.
Parenting Orders
A Parenting Order is an order which is made by the Court, either by consent of the parties or by a Judge, which outlines the care and living arrangements of a child.
Sealed Copy
A copy of a document which has an original Court seal stamped on it.
Senior Judicial Registrar
A judicial officer who has been delegated more power to consider interlocutory Court applications, for example, interim parenting or property issues, such as with who children should live with in the short term, or then interim distribution of assets.
Service
The process of delivering or posting Court documents to a party after they have been filed, in accordance with the rules of Court. Service ensures that all parties have received the documents filed with the Court.
Subpoena
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.
