Family Law Dictionary
Abduction of Children
It is unlawful to take a child out of Australia without obtaining the consent of each party to a parenting order. In most cases this will mean that where there are Court Orders about children, each parent will have to obtain the other parent’s written consent before taking a child overseas. Where children are taken overseas without permission, or not returned to Australia after an agreed overseas visit, the provisions of Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention) may apply.
If a hearing is adjourned, it is deferred or postponed to another day.
An affidavit is a written statement submitted to the Court in support of an application. It must be sworn or affirmed before an authorised person, such as a Justice of the Peace or lawyer. An affidavit should contain statements of fact rather than arguments.
Annulment of Marriage
If a marriage is annulled, it is as though it never took place. Under Australian law, a marriage can only be annulled if:
– Either party was lawfully married to someone else at the time of marriage, or
– The relationship was prohibited (for instance a brother marrying a sister), or
– The laws of a marriage ceremony were not complied with, or
– One or both parties to a marriage were not of a marriageable age, or
– There was no consent to the marriage.
For the Family Court to find there was no consent to a marriage, the Court would need to be satisfied there was duress, mistaken identity, mistaken belief about the nature of the ceremony or some sort of mental capacity. Annulments of Marriage are very uncommon in Australia. The Catholic Church has its own process for annulments of marriage. However, these are annulments according to the rites of the Catholic Church, not under Australian law.
Arbitration in Family Law
Arbitration is where a couple hires an independent decision maker – an ‘arbitrator’ – to decide their dispute. In Family Law, arbitration is used only for financial and property matters. Arbitration is an alternative process to going to Family Court and having a Family Court Judge decide the dispute.
Best interests of the child
In making parenting Orders about children, the Family Court’s paramount consideration is the best interests of children. In deciding what is in a child’s best interest, the Court has to consider primary considerations and additional or secondary considerations.
The primary considerations are the benefit to a child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. If there is a conflict between those two considerations, the protection of the child is given higher priority.
The additional considerations are numerous but include the views of the child, the nature of the child’s relationship with each parent, the extent to which each parent has taken the opportunity to care for and spend time with the child and any family violence issues.
Binding Financial Agreement (BFA)
A Binding Financial Agreement is an Agreement which sets out how assets, liabilities and financial resources will be divided if a couple separates. The correct legal term is a “Financial Agreement” but they are also commonly referred to as “prenuptial agreements”, “cohabitation agreements” “Binding Financial Agreements” or “BFA’s”. Binding Financial Agreements can be entered into before marriage, during a marriage or even after separation. De facto couples can also enter into Financial Agreements.
Child support is the payment made for the financial support of children after parents separate. It is usually paid by one parent to the other parent. However if another person is caring for the children they may be able to receive child support. In Australia, the Child Support Agency administers the system of child support. Parents can ask the Child Support Agency to determine how much child support they should pay. Parents can also ask the Child Support Agency to collect child support payments. Child support is usually paid as regular periodic payments (‘periodic child support’), but sometimes it can be paid as a lump sum (‘lump sum child support’).
Child Support Agency
The Child Support Agency is the Federal Government Agency which governs the assessment and collection of child support payments in Australia.
Child Support Agreements
Child Support Agreements are written agreements between parents detailing the child support which will be paid. They are used most often where parents want to have their own arrangements for child support, rather than having child support assessed by the Child Support Agency. If Child Support Agreements are registered with the Child Support Agency and satisfy particular legal requirements, they are binding on the parents.
There are two types of Child Support Agreements; Binding Child Support Agreements and Limited Child Support Agreements.
Cohabitation is the date on which 2 people begin living together as a couple on a genuine domestic basis. If a couple lives together for a period of time before marrying, the length of the relationship will be calculated from the date the couple started living together, rather than the date of marriage.
A Cohabitation Agreement is an Agreement which sets out how assets, liabilities and financial resources will be divided if a de facto couple separates. The correct legal term is a “Financial Agreement” but they are also commonly referred to as “prenuptial agreements”, “Binding Financial Agreements” or “BFA’s”. De facto couples can enter into Cohabitation Agreements before they start living together, while they are living together or after they separate.
Collaborative Law is a new way of resolving family law disputes. The couple and their lawyers commit to resolving their issues through a series of meetings. Instead of the traditional focus on each party’s legal rights and entitlements, the discussions are directed to achieving outcomes that will meet the emotional and financial needs of both parties. The parties and their lawyers have to commit to resolving their matter by agreement, rather than going to the Family Court. If negotiations break down and a party wants to go to Court, both parties need to engage new lawyers.
Compulsory Family Dispute Resolution (FDR)
The Family Court requires parties to try and resolve matters through a mediation type process before starting Court proceedings about children’s matters. This is known as Compulsory Family Dispute Resolution or Family Dispute Resolution (FDR). FDR is provided through accredited mediators, counsellors and lawyers. Before starting Court proceedings for parenting matters, you must provide the Court with a certificate stating that you have tried to resolve your matter through FDR. Some exceptions apply including in cases of family violence or where there is a need for urgent Court Orders, for instance if there is a fear that a child is at imminent risk of abuse or of being removed from Australia.
A Conciliation Conference is a type of mediation conducted by a Registrar of the Family Court. It relates to property and financial matters only and occurs only if Court proceedings have been issued. Offers to settle made during a Conciliation Conference are confidential, which means that if the matter does not settle at the Conciliation Conference, those offers cannot be repeated to the Judge who later hears the matter and makes a decision.
Consent Orders are Court Orders made when the parties are in agreement. Many people are able to resolve parenting matters or property settlements by agreement and have Consent Orders made by the Family Court, without the parties needing to attend Court.
Contravention of parenting order
A contravention of a parenting order occurs when someone does not follow a parenting order made by the Family Court. It is also referred to as a breach of a parenting order. Serious consequences can apply to contraventions of parenting orders. For first contraventions, the Court may order attendance at a parenting course. If there are ongoing serious contraventions, the Court can order that a person be fined or even gaoled.
In the context of family law matters, references to “Court” usually encompass both the Family Court and the Federal Circuit Court (previously called the Federal Magistrates Court). State Magistrates’ Courts can also hear family law matters, however this tends to occur more in regional areas, rather than in capital cities, where there is easier access to the Family Court and Federal Circuit Court. Both the Family Court and Federal Circuit Court also visit regional areas on a regular basis to hear family law matters.
Custody, Access and Guardianship
Legal terminology changes over time. The terms Custody, Access and Guardianship are no longer used by the Family Court, but they are still commonly used in the community. The Family Court now refers to children living with a parent, spending time with a parent and communicating with a parent. The Family Court also refers to a parent having parental responsibility.
Decree Nisi and Decree Nisi Absolute
Decree Nisi is the old terminology for a Divorce Order. Divorce was also previously referred to as ‘Dissolution of Marriage’.
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. In some Victorian legislation, de facto relationships are referred to as ‘domestic relationships’. The Family Law Act recognises that de facto couples can be opposite sex couples or same sex couples (gay and lesbian).
Divorce is the process by which a marriage is legally ended. After a divorce, each person is free to remarry. Parties have to be separated for at least 12 months before they can apply for a divorce. You do not need to be divorced before you have a property settlement or decide arrangements for children.
A Divorce Order is the Order of the Court that ends the marriage. It was previously known as ‘Decree Nisi’. The Court provides a Certificate of Divorce to evidence the Divorce Order.
Equal shared care of children
Equal shared care of children refers to an arrangement where children spend equal time living with each parent. Some separated families do this on a week-about basis where children live with one parent one week and with the other parent the other week. Other separated families might have changeovers between parents’ houses every 3 or 4 days.
Equal shared parental responsibility
Equal shared parental responsibility concerns decision making about children. Most often the Court will order that parents have equal shared parental responsibility for children, even if the children are mainly living with one parent. Where parents have equal shared parental responsibility they are required to consult with each other and try and reach decisions jointly about major long term children’s issues such as education, health and religion.
Ex parte hearing
An ex parte hearing is when the Court hears a matter without the other party being present. Generally in family law, this only occurs in cases of urgency.
The Family Court has jurisdiction to hear all family law matters including:
– Parenting issues (‘child custody’ and ‘access’)
– Property settlements for separated married couples and de facto couples
– Spousal maintenance claims and maintenance claims by de facto partners
– Adult child maintenance
– Child support
The Family Court also hears appeals from the Federal Circuit Court. The Family Court usually only deals with the more complex cases and most family law matters are hear by the Federal Circuit Court.
Family Court Order
A Family Court Order is a ruling or direction made by the Family Court. There can be serious consequences of not following a Family Court Order.
Family law is the area of law which deals with:
– Arrangements for children after separation (custody and access)
– Division of property after separation (property settlements)
– Financial arrangements after separation (maintenance and spousal maintenance)
– Child support and child maintenance
– Prenuptial agreements for couples who are marrying or already married (Financial Agreements)
– Cohabitation agreements for de facto couples (Financial Agreements)
– Family violence and Intervention Orders
Family Law Act
The Family Law Act 1975 is the Australian Commonwealth legislation which governs:
– Divorce in Australia
– Disputes about arrangements for children after their parents have separated
– Disputes about property and financial matters after separation, for both married and de facto couples, including same sex couples (gay and lesbian)
– Financial Agreements (prenuptial agreements and cohabitation agreements) for married couples and defacto couples, including same sex couples (gay and lesbian).
A family report is a report prepared by a counsellor, psychologist or like professional to assist the Family Court in making a decision about arrangements for children. The family report is ordered by the Family Court and each of the parties, and usually the children, meets with the report writer. The family report can address issues such as which parent the children should live with, whether there should be an order for equal shared care and when the children should spend time with the other parent. The family report is particularly useful in providing an opportunity for children to express their views about these issues.
Federal Circuit Court (previously Federal Magistrates Court)
Like the Family Court, the Federal Circuit Court has jurisdiction to hear all family law matters including:
– Parenting issues (child custody and access)
– Property settlements for separated married couples and de facto couples
– Spousal maintenance claims and maintenance claims by de facto partners
– Adult child maintenance
– Child support
Most family law matters are heard in the Federal Circuit Court unless they concern:
– International child abduction
– International relocation of children
– Disputes about jurisdiction in family law matters
– Special medical procedures for children, such as gender reassignment or sterilisation
– Breaches of parenting orders where the Orders have been decided by the Family Court within the previous 12 months
– Serious allegations of sexual abuse of a child or physical abuse of a child or serious controlling family violence
– Complex questions of family law
– Matters that are likely to require a long hearing
– Adoption of children
– Validity of marriages and divorces
A Financial Agreement is a written agreement or contract which sets out how assets, liabilities and financial resources will be divided when a couple separates. Financial Agreements are commonly referred to as “prenuptial agreements” but in fact, they can be entered into before marriage, during a marriage or even after separation. De facto couples can also enter into Financial Agreements. For de facto couples, Financial Agreements are often referred to as “Cohabitation Agreements”. Many people also call Financial Agreements “Binding Financial Agreements” or “BFAs”.
A financial settlement is when a couple divides their assets, liabilities and superannuation between them after they separate. It is also referred to as a “Property Settlement”.
Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention). The Convention 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.
Independent Children’s Lawyer (ICL)
An Independent Children’s Lawyer is a lawyer appointed by the Family Court to help the Court decide what is in the children’s best interests. Independent Children’s Lawyers were previously called “Children’s Representatives”. The Independent Children’s Lawyer does not take instructions from the children, or have to do what the children ask, but they must act in the children’s best interests. The Independent Children’s Lawyer has to form their own opinion about what is in the children’s best interests.
An Intervention Order is an order made to stop someone from engaging in behaviour which makes another person feel unsafe. In Victoria, Intervention Orders are made in the Magistrates’ Court, or the Children’s Court if the defendant is a child under 18 years of age.
Intervention Orders can be granted in circumstances of family violence or stalking. Interim Intervention Orders can be granted on an ex parte basis without the defendant being present. Final Intervention Orders are only made when the defendant has had an opportunity to respond to the application for an Intervention Order.
An Intervention Order is a civil order, but breaching an Intervention Order is a criminal offence.
Joint custody of children
Joint custody of children is when children spend time living with each parent. The children might spend equal time with each parent, for instance on a week about basis. Alternatively, the children might live for more time with one parent and less time with the other parent. Now the Court uses the terms “live with” and “parental responsibility” instead of custody.
Major long term issues
Major long term issues in relation to a child, means issues concerning the care, welfare and development of the child, of a long term nature. It includes but is not limited to issues about education, religion, culture, health, the child’s name and changes to living arrangements which make it significantly more difficult for children to spend time with the other parent.
Where parents have equal shared parental responsibility, they need to consult with each other about major long term issues and make a genuine effort to come to a joint decision about those issues.
The Family Court recognises marriages in Australia and overseas. However, it does not recognise marriages between same sex couples (gay and lesbian) even if the marriage is legal overseas.
If you married overseas and wish to apply for a divorce or for a matrimonial property settlement in Australia, you will need to provide the Family Court with a copy of your marriage certificate. If your marriage certificate is in another language, you will also have to provide an approved translation from a qualified translator.
Mediation in Family Law
Mediation is when a couple meets with an independent person to talk about the issues in dispute between them and try and reach an agreement. The mediator facilitates discussion between the parties, but does not provide advice or make decisions for them. In family law, mediation is commonly used to resolve children’s issues. It can also be a very useful way of reaching agreement about property and financial matters. Sometimes lawyers are present for mediations and sometimes just the parties and the mediator are present. It is best to obtain legal advice before going to Mediation so that you are aware of your rights and entitlements before you negotiate. Mediation can also be conducted with the parties in separate rooms if this is preferred.
Overseas marriages are generally recognised as valid in Australia, provided the marriage:
was legally valid under the laws of the country where the marriage took place, and
would have been legally valid under Australian law, if the marriage had taken place in Australia, and
is between opposite sex couples.
Overseas marriages do not need to be registered in Australia. For the purpose of family law matters, the foreign marriage certificate is usually adequate evidence of the marriage. However, if the foreign marriage certificate is in a language other than English, a formal translation of the marriage certificate, from an accredited translator, will need to be provided in any Family Court proceedings, including proceedings for Divorce.
Parental responsibility means the duties, powers and responsibilities which parents have in relation to their children.
A parenting plan is a written agreement between parents setting out agreed arrangements for children. Unlike Consent Orders about parenting matters, a parenting plan is not approved by or filed with the Family Court. The terms of a Parenting Plan cannot be enforced by the Family Court, however the Court can give consideration to the terms of a Parenting Plan when making any Orders about children or enforcing Orders about children. The terms of a Parenting Plan can also override any previous Court Orders about children. It is therefore important to obtain legal advice before entering into a Parenting Plan.
Parenting Orders are Court Orders which relate to arrangements for children. They can include arrangements about who children will live with (also called ‘custody’ or ‘residence’), when children will spend time with a parent (also called ‘access’ or ‘contact’). Parenting Orders can also provide for one or both parents to have parental responsibility. Parental responsibility is responsibility for making decisions about children’s care, welfare and development.
The Family Court can also make Parenting Orders about specific issues, such as where a child attends school, where changeover takes place and arrangements for parents to notify each other about medical and health issues concerning children. Parenting Orders can be made by agreement as Consent Orders, of if the parents cannot agree, the Court can decide the Parenting Orders.
A pre-nuptial agreement is an Agreement which sets out how assets, liabilities and financial resources will be divided when a couple separates. The correct legal term for a “pre-nuptial agreement” is a “Financial Agreement”. They are also referred to as “Binding Financial Agreements” and “Cohabitation Agreements. These Agreements can be entered into before marriage, during a marriage or after separation. For de facto couples, they can also be entered into before a de facto relationship, during a de facto relationship or after separation.
A property settlement is when a couple divides their assets, liabilities and superannuation between them after they separate. It is also referred to as a “Financial Settlement’. The same term is used for division of property between married couples (matrimonial property settlements) and de facto couples (de facto property settlements).
After separation, one parent may want to move with the children to another town, State or even country. The other parent may object to this on the basis that the relocation would make it difficult for the children to spend time with them or have an ongoing relationship with them. These can be difficult matters for parents to agree. If the Family Court is asked to decide whether the relocation should proceed, the Court will weigh up all options including the proposals of each parent and then decide what would be in the children’s best interests.
If you are considering relocating or are concerned the other parent may be planning to relocate it is important that you obtain legal advice as soon as possible.
Residence and Contact
Legal terminology changes over time. The terms Residence and Contact are no longer used by the Family Court, but they are still commonly used in the community.
The Family Court now refers to children “living with” a parent, “spending time with” a parent and “communicating with” a parent. The Family Court also refers to a parent having “parental responsibility”.
Separation is the point at which a marriage or de facto relationship ends.
Separation under the same roof
A couple is separated under the same roof when their relationship has ended, but they continue to live together in the same house. It is not uncommon for people to live together in the same house for a short period after separation, while alternative accommodation arrangements are being made.
Sole custody of children
Sole custody of children is when children live primarily with one parent. Now, the Court uses the term “live with” instead of “custody”.
Spousal maintenance is where one spouse provides financial support to the other spouse. You might have heard it referred to as ‘alimony’ in American television shows. Spousal maintenance is not an automatic entitlement. It is paid only by agreement or Court Order. For the Family Court to order spousal maintenance, the Family Court must be satisfied that:
– One spouse does not have sufficient income (excluding any means tested government benefits, such as Centrelink entitlements) to support themselves, and
– After taking into account reasonable living expenses, the other spouse has sufficient income to help financially support the first spouse.
Spousal maintenance can be paid by way of ongoing periodic payments or as a lump sum.
Substantial and significant time with children
In certain circumstances, the Family Court must consider whether children should spend substantial and significant time with each parent. Substantial and significant time means time which includes both weekends and weekdays and both holidays and school days. The intention is that it allows parents to be involved in children’s care both as part of the children’s day to day routine and for special occasions.
The trial is the final hearing of an application made in the Family Court. At the trial, the Court will usually hear evidence from the parties and the parties will usually be cross examined in the witness box. The Court considers all the information before it, including arguments or submissions from each party’s barrister and then makes a final decision. This final decision is referred to as the ‘judgment’. The Court sometimes reserves its judgment after a final hearing. This means that the judge takes some time to consider the decision after the trial and then delivers the decision at a later time.
Some people use the term “visitation” to describe children visiting a parent after separation. Other commonly used terms for this are “contact” and “access”. The Family Court refers to visitation as children “spending time with” a parent.
Welfare of children
The care, welfare and development of children are at the forefront of the Family Court’s decision making in parenting matters. The Court is required to give paramount consideration to the best interests of children when making parenting Orders.
For more information telephone us on 07 5579 8920 to make an appointment with one of our experienced family lawyers.