LEGAL TERMS
A
Address for service – The address given by a party where documents can be served on them by hand, post or some other form of electronic communication.
Adjourn – Defer or postpone a court event to another day.
Adjournment – When a case is put off to a later date.
Affidavit – A written statement of facts by a party or witness made under oath or affirmed before a notary public, justice of the peace, legal practitioner or other authorised officer. It can be used to support an application or can be tendered by a party to a proceeding as evidence in court.
Appearance – The coming to court as a party, either in person or through a legal representative. Parties or legal representatives may be asked to announce their appearance. This means stating your name and who you represent (if applicable).
Applicant – A person, or organisation that applies to the court to start a legal proceeding against another person or persons. Applicants, appellants, respondents, defendants, etc. are generally called ‘parties’.
Application – A document that starts a legal proceeding. Also used as a broad term for what the applicant is doing in the court: he or she is ‘making an application’.
B
Barrister – A lawyer who specialises in litigation. They may advise on the strategic elements of running a case, and conduct court appearances. Solicitors and Barristers are both lawyers but they perform different functions. Solicitors generally deal directly with clients. Barristers are engaged by solicitors rather than clients.
Binding Financial Agreement (BFA) – A financial agreement is designed to set out how property of the parties (including superannuation) will be divided in the event of a separation. An agreement can also cover other financial matters such as spousal maintenance. Agreements can be entered into before a relationship, during a relationship or after separation. To be binding and enforceable in a Family Law Court, the agreement must meet strict requirements set out in the Family Law Act. Each party must have independent legal advice and each party must make full disclosure of their assets, liabilities and financial position before entering into the agreement.
C
Chattels – Any physical (tangible) property other than land, buildings and things attached to land.
Child Dispute Services – Child Dispute Services are provided by family consultants who are trained in social work or psychology. These services aim to assist parents and carers understand the needs of their children and to assist the Court make decisions that are in the best interests of children. The services are not confidential or privileged and information obtained through interviews with children, parents and others is admissible in Court proceedings.
Child Support – Is a payment by one parent to the other to help with the cost of looking after children. Parents can enter into an agreement which sets out in writing the amount, frequency and method of payment of child support payments. If no agreement has been entered into, the amount payable is calculated by the Child Support Agency and takes into account factors such as the number of children involved, their ages, the incomes of both parents and the level of care each provides. For further information visit: www.csa.gov.au
Chose in Action – A property right in something intangible. It is a personal right which can only be enforced through legal action as opposed to physically taking possession of an object. Examples include the right to an interest in estate, the right to sue for damages for an injury, the right of an employee to unpaid wages, the right to a tax refund, the right to sue someone for a debt owed, the right to an insurance claim, and shares in companies.
Collaborative Law/ Collaborative Practice – Collaborative Law offers separating couples an alternative to traditional methods of dispute resolution following separation. It is built upon mutual problem-solving and involves the parties pledging in writing that they will work towards an agreement without going to court. Collaborative Law is suitable to parties who have a desire to maintain respect, protect children and prepare for a hopeful future. Collaborative Law aims to help families make a separation a more peaceful transition to a new life. For further information visit: www.collaborativepractice.com or www.qldcollablaw.com.au.
Commonwealth Information Order – This Order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about a child’s location that is contained in or comes into the records of the Department.
Consent orders – An agreement between the parties that is approved by the court and then becomes a court order. This terminology would apply to parties that have lodged Consent Orders without making an application to start a case.
Conciliation Conference – A conference convened by a Registrar in a Family Law Court. It involves all parties and their lawyers, aiming to resolve disputes in financial cases. For further information download the “Conciliation Conference” brochure in our resources section.
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.
Costs – This term is used for the legal fees or expenses of a party to a matter in the Court. On the determination of a case, the court has the discretion to ‘award’ costs and order that a party pays another party’s legal expenses for the matter. For further information see the brochure “Legal Costs in Family Law Matters” in our publications section.
Counsel – A barrister.
D
Directions – Before the trial or hearing of a matter a judge gives directions so that the parties involved will be properly ready for the hearing. Generally it involves setting down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the court.
Disclosure / Discovery – The process by which the parties involved in legal proceedings inform each other of documents they have in their possession and which relate to the matters in dispute between the parties. For further information see the “Duty of Disclosure” brochure in our publications section.
Dispute Resolution Certificate – See section 60I certificate.
Divorce order– An order made by a court that ends a marriage.
E
Enduring Power of Attorney – See Power of Attorney below
Enforcement order – An order made by a court to make a party or person comply with (follow) an order.
Exhibit – A document or item produced in court for inspection by the court, to be shown to a witness or because it is referred to in an affidavit.
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.
F
Family consultant – A professional trained in social work or psychology who is an expert in assessing inter personal relationships and the needs of children in high conflict families. They provide assistance to disputing families and the Court.
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 Magistrates Court of Australia
Family Report – A behavioural science assessment (by a Family Consultant) report that focuses on the best interests of children from a non-legal and independent perspective. Family Reports are ordered by judicial officers and provided by Court employed family consultants or approved, private report writers.
Family violence – Conduct (whether actual or threatened) by a person towards a family member, or property of a family member, that causes reasonable fear (or reasonable apprehension) for his/her personal wellbeing or safety.
Family violence order – An order made under Commonwealth, state or territory legislation to protect a person, including a child, from violence.
First return date – The first day an application comes before a Court.
Final orders – Means the order of the court that finally decides a case (brings the case to a close) that is commenced by an Application for Final Orders (Form 1).
Financial Statement – A court form that must be completed when filing proceedings concerning financial matters. The form sets out things such as your weekly income, assets, liabilities and superannuation in your name.
Form 6 superannuation Form – A form that allows a party to property settlement proceedings obtain information about their own, or their partner’s superannuation. You can download a copy in our resources section.
Full Court – A Full Court consists of three or more judges together hearing an appeal from a decision of another judicial officer. In respect of some appeals from the Federal Magistrates Court, a Full Court may consist of a single judge.
H
Hearing – A proceeding conducted by the court to resolve issues or fact and/or law, in which evidence may be taken.
I
Independent children’s lawyer (ICL) – A lawyer appointed by the court to represent a child’s interests in a case. For further information download the brochure “How will an independent children’s lawyer help my child?” in our resources section.
Injunction – A court order making a person do, or refrain from doing, something.
Interim application – An application for an order intended to continue until a further order of the Court.
Interim order – An order made by a court until another order or a final order is made.
J
Joint Tenants – In Queensland co-owners of land can hold property as joint tenants or tenants in common. Where property is held as joint tenants, if one co-owner dies his/her share automatically passes to the remaining co-owners. The most common use of holding as joint tenants is a husband and wife situation where upon the death of the husband or wife, their interest automatically passes to the surviving party. When couples separate, it is important to consider whether they still wish to hold property as joint tenants. If not, one party can apply to “sever” the tenancy and the property can then be held as tenants in common.
Judgment – The final order or set of orders made by a Judge after a court hearing, including reasons that usually set out the facts and law as applied in the case. Judgment is said to be ‘reserved’ when a judge needs time to consider all the evidence and argument and so postpones the delivery of the judgment from the date of the hearing in court to some later date. Judgment is said to be ‘ex tempore’ when a judge gives it orally immediately after the hearing of the matter.
Jurisdiction – 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.
L
Leave – ‘Leave’ is permission to do something. For example, if a person has left it too late to appeal (they are over the time set by law), it may be possible for that person to ask the court for permission to appeal anyway. This would be by an application ‘for leave to appeal’.
Liberty to apply – The right of a party to apply for further orders to be made by the court, without the party having to commence a new action or file a formal document in a proceeding.
Location Order – An order requiring a person give the Court information about a child’s location.
M
Magellan – A case management system designed to ensure that matters involving allegations of serious child abuse are dealt with as effectively and efficiently as possible.
Mediation – A process in which an impartial third party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.
N
Notice to produce – A document in which one party calls upon the other party to bring specific documents to the court at a specified time.
O
On the papers – To deal with an application on the written evidence and submissions filed by the parties, without taking oral evidence or submissions.
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. (Command of the Court)
P
Pace Alert – In circumstances where a child has an Australian Passport, and there is concern that they may be removed from Australia without the other parent’s consent, it is possible to have a ‘PACE Alert’ registered with the Australian Federal Police, provided there is an order of a Family Law Court in respect of the living arrangements of the children.
The PACE Alert will enable the Australian Federal Police to register the child’s details on an Airport Watch List at all international departure points within Australia and prevent the child from departing Australia.
If there are no court orders in place for the living arrangements of the child, an application for orders for the children’s living arrangements and specifically an order for the Australian Federal Police to register the PACE Alert in the child’s name will need to be made. The PACE Alert will not be activated until the order is granted by the court, and a copy of the written order is provided to the Australian Federal Police.
Parental responsibility – The responsibility of each parent to make decisions about the care, welfare and development of their children. These responsibilities may be varied by agreement or by a court order.
Parenting plan – A written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.
Parties – Both the applicant and respondent are parties to the proceeding. If a third party is joined or someone is given permission to intervene they also become parties to the proceeding.
Party or parties – A person or organisation involved in a court case; for example, the applicant or respondent.
Pending – Pending matters are filed cases that have not yet been finalised by judgment or otherwise.
Power of Attorney – This is a legal document that allows another person to act on your behalf to manage your assets and financial affairs while you are alive. For example, you may be travelling overseas and you want to give your attorney access to your bank accounts to pay your bills or manage your finances.
A power of attorney ceases if you lose capacity to attend to matters yourself (ie you lose capacity) unless it is an enduring power of attorney. An enduring power of attorney ceases when you die. The executor named in your will then takes over the responsibility of administering your estate.
Pre-Action Procedures – The Family Law Rules require prospective parties to genuinely try to resolve their dispute before starting a case. Parties to a dispute can do this in a number of ways such as counselling, negotiation, or mediation. Certain exceptions apply such as urgency, fraud or where a time limit is close to expiring. For further information download the brochure “Before you file – pre-action procedures for financial cases”.
Procedural order – An order made by a court of a practical nature. For example, the court may order the parties to attend family dispute resolution.
R
Recovery Order – A recovery Order is an order of the Court that requires a child to be returned to a parent or person with parental responsibility for that child. A recovery order can authorise certain people (eg a police officer) to find and recover a child for the purpose of returning him or her to a particular person. For further information download the brochure “Recovery Orders” from our resources section.
Registrar – A court 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 – exercises powers delegated by the Judges of the Court.
Relocation Application – Moving to another town, state or country with children is known as relocation. If moving is going to limit the time the children live with or spend time with a parent or another significant person in their lives, a court may not give permission. If you want to move away with children and the other parent does not agree, you can apply to a court for a relocation order to allow you to move. For further information download the “Relocation and Travel” brochure from our resources section.
Respondent – The person or organisation against whom legal proceedings have been started by the applicant.
Return date – The date on which a matter is next listed before the court.
Rules – The Family Law Rules, sometimes referred to as the Rules of the Court, set out key obligations such as what forms must be used, when they must be filed and any other requirements of the Court. The Federal Magistrates Court has its own Rules.
S
Section 60I Certificate – In order to apply to the court for parenting orders, parties are required to file with the court a certificate (a 60I certificate) confirming the parties have made a genuine effort to resolve the dispute through family dispute resolution. Further information on family dispute resolution can be found at www.familyrelationships.gov.au
Security for costs – If the court makes an order that the applicant provide security for costs for a certain sum, then the applicant must provide to the registry, security to that value. This is to ensure that, if the applicant loses the case, and is ordered to pay the respondent’s costs, those costs will be paid.
Self-Represented Litigant – People who are a party to a dispute before the Court, who have no legal representation and are conducting the matter on their own behalf.
Service – The process of sending or giving 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 a court.
Single Expert – In a matter the parties may agree, or the court can order, that an independent expert be appointed to provide a report on a substantial issue. One single expert is appointed to save the costs of each party paying for their own expert. Each party is equally liable to pay a single expert’s reasonable fees and expenses incurred in preparing a report unless the court otherwise orders. Once a single expert is appointed strict rules apply how the parties instruct the expert, how they communicate with him or her and what must be included in the expert’s report.
Spousal Maintenance – This is an amount of money or expenses paid by one spouse to or on behalf of the other. Spousal Maintenance is paid when the receiving spouse cannot support himself/herself and the other spouse has the capacity to assist. An application for spousal maintenance can be made at any time prior to a divorce. After parties divorce however, an application must be made within 12 months of the date on a divorce certificate. An application can only be made after this time with permission of the Court.
Submission(s) – Legal argument (either oral or written) put to the court at a hearing.
Subpoena – A document issued in a legal proceeding requiring a person to give evidence or to produce documents to the court at a certain place and time. A subpoena is a court order, and if properly issued and served, then disobeyed, the disobedient person could be in contempt of court.
Superannuation Death Benefit Nominations – The nomination of beneficiaries within superannuation accounts can take three forms: Trustee Discretion, Lapsing Binding and Non-Lapsing Binding. Non-Lapsing Binding nominations mean the trustee of the superannuation fund must pay the benefit in accordance with your instructions and has no discretion. Lapsing Binding means the trustee must pay the benefit in accordance with your instructions but the instructions are only valid for a set period of time (eg 3 years).
T
Tenants in Common – This is where two or more owners hold property in any share they choose. In Queensland, co-owners of land can hold land as either tenants in common or joint tenants. When land is held as tenants in common, each owner has the right to deal with their share of the property separate from the others. When a tenant in common dies their share passes in accordance with their will and therefore it important that co-owners have a valid and enforceable will.
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.
Trial – Judicial examination and determination of issues between parties with or without a jury. The final hearing of a matter before a judge, federal magistrate, or judicial registrar. Having considered all the evidence presented, the judicial officer will make orders to finalise the matter.
U
Undertaking – An undertaking is a promise to the Court that is as binding as an Order of the Court. For example, where a person gives an undertaking that they will take a certain action, the Court will require that person to take that action as if the Court itself had ordered the person to take the action. Breach of an undertaking is treated the same as a breach of an order.
W
Will – A legal document that sets out how your assets are distributed on your death. When you establish a will you usually set out who is to be appointed as your executor. This is the person or persons that you are trusting with the job of looking after your affairs until your estate is distributed to the nominated people (your beneficiaries)
1 Many of these definitions come from the family law web guide. To find further terms click on the link: www.familylawwebguide.com.au/WEBGuide/pg/glossary1. These terms were last reviewed in May 2013 and changes to the law may have been made since that time.
