A
Additional considerations
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The court’s focus is on the best interests of the child(ren). There are two primary considerations and several additional considerations when determining what is in a child’s best interests. Additional considerations include the views of the child, the nature of the relationship between the child and each parent and people significant to the child, how well each parent facilitates a close relationship between the child and the other parent, the likely effect of a change in the child’s circumstances, any difficulties with the child spending time with the other parent, each parent’s capacity to provide for the child’s needs, the maturity, sex, lifestyle and background of the child, cultural factors (if applicable), the attitude of the parties towards parenting and any family violence.
See section 60CC of the Family Law Act 1975 (Cth.) or section 66C of the Family Court Act 1997 (WA) for more information.
Alternative dispute resolution (ADR)
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A way to resolve disputes without going to court. ADR can include mediation, arbitration, or negotiation.
C
Cross-examination
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Where a party or their lawyer questions another party or their witness who is giving evidence in a case. Cross-examination by parties personally is no longer allowed in Family Court proceedings if allegations of family violence have been made. The Family Law Cross Examination ban automatically applies if there is a Family Violence Restraining Order in place. If the ban applies parties must make arrangements to be represented by a private lawyer or apply to Legal Aid for a lawyer.
Court order
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The implementation of a court’s decision requires specific actions from the parties in a case. The court’s decision is expressed by way of court order(s). The Court may make findings in respect of the parties’ interest in assets and/or liabilities and express these findings as court orders. A court order can be either interim or final.
Court hearing
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The date and time when a matter is scheduled to be heard by the court.
Court documents
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In Family Court proceedings, you may be required to complete and lodge documents including among other things the orders sought by you, a Financial Statement or affidavits. If you have an upcoming hearing, the court may make orders for you to file specific court documents in preparation for the hearing.
Court case
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A court case is created when an individual applies to the court for orders. This process initiates the legal proceedings and becomes the official case before the court.
Contravention of parenting orders
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Parties to court orders must obey them. A person is taken to have contravened a parenting order if he or she has intentionally failed to comply with the order or made no reasonable attempt to comply with the order and there is no reasonable excuse. Failure to comply with an order affecting children can have serious consequences.
Consent order
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A written agreement that is approved by a court is called a consent order. This type of order is often used when parties to proceedings have come to an agreement and they want the court to formalise the terms of the agreement. Once the consent order is finalised, it has the same power and effect as a court order that is issued after a defended court hearing.
Confidentiality
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Family Court proceedings are sensitive and private. To protect those involved, legislation under section 121 of the Family Law Act 1975 exists to prohibit the publication of any part of the proceedings in a public forum unless with leave of the Court. This protection extends to the parties to the proceedings, persons related to or associated with parties to the proceedings or witnesses in the proceedings.
Conciliation conference
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This is a without prejudice settlement conference on property/financial matters presided over by a Registrar of the Family Court. If the parties cannot come to an agreement, the Registrar may make orders to prepare the matter for trial.
Collaborative law
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Collaborative law is a practice model where parties agree not to commence defended court proceedings and to resolve any differences resulting from their separation by way of negotiations.
Child support
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Child support is payable until a child reaches the age of 18 years or the child finishes Year 12 and determined administratively by Services Australia or via personal agreement, mainly taking into account the incomes of the parents and the care percentage of the child.
Child abuse
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A party to parenting proceedings who alleges a party or a child has been the victim of family violence or abuse, or is at risk of being subjected to violence or abuse must file a Notice of Child Abuse, Family Violence (or Risk) – Form 4 with the court. When a Form 4 is accepted for filing, the Family Court refers the form to the Department of Communities – Child Protection and Family Support so they can provide a response. The Department will then prepare a memorandum for the Family Court, which may require an investigation.
Case assessment conference
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The purpose of this conference is to enable the Family Court consultant to screen for risk issues, identify whether an appropriate agreement may be possible and make recommendations about the future conduct of the case. If agreement is not possible, then on a later date the Magistrate will hear the case and make procedural orders. The Family Court consultant will prepare a memorandum outlining what happened at the conference, which will be provided to the parties and the Magistrate.
D
Duty List
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A court list of cases before the court for their first hearing. At the first court event there is the the opportunity to potentially reach agreement on some or all matters. The hearing is conducted by either a Registrar, Magistrate or Judge.
Divorce order
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A court order (decree absolute) formally ending a marriage. Once issued, the parties are free to remarry.
Decree absolute
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Upon a successful application, on the day of the divorce hearing, the Court grants a decree nisi or pre-divorce, which becomes final (decree absolute) 30 days from the date on which the decree nisi was made. The final decree ends a marriage. Once this has been granted, the couple is legally divorced.
Date of separation
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The date on which a party to a de facto relationship or marriage regarded the relationship to be over (finally ended) and there is no reasonable likelihood of reconciliation. For many couples this would be the date on which one of the parties move out of the shared residence however, in some instances parties may remain living separated under one roof.
F
Family Violence Restraining Order
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A Magistrates Court order made under a State or territory law to protect a person from family violence. This may be an interim or final order.
Future needs
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A party’s financial needs following separation. Matters to be considered are a party’s future earning capacity and whether a party has the care of a child of the relationship or any other person they have a duty to maintain (e.g. a disabled or elderly family member).
Full & frank disclosure
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Parties to a family law matter have a legal duty to disclose all information (and documents) relevant to their case. This apply to both property and parenting cases.
Financial support
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Financial support paid as either spousal maintenance or de facto maintenance to a former partner whom is proven to be unable to adequately support themselves following separation.
Financial arrangements
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The division of property between married parties or parties in a de facto relationship following their separation.
Final hearing
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A final determination of the case by a Judge or Magistrate.
Final agreement
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The parties’ agreement finalising their property settlement and/or parenting matter on a final basis. Once the agreement is formalised by e.g. Family Court consent orders, the case comes to an end.
Family violence
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Family violence is a term used to describe any violent, threatening or controlling behaviour within a family. This can include, but is not limited to, physical, emotional and financial abuse.
Family therapy
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Family therapy is a type of counselling that involves all relevant members of a family. The goal is to improve communication and resolve conflict within the family.
Family Court Registry
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Aa administrative service that provides people with information about the court and its processes, as well as where individuals can file documents relating to their case. The Registry is open to the public and offers guidance and support for those seeking advice on procedural matters.
Family Law Act 1975 (Cth.)
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For married couples in Western Australia family law is governed by the Family Law Act 1975 (Cth.) which deals among other things with divorce, property settlement, spousal maintenance and parenting matters.
Family Dispute Resolution exemption
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The Court may exempt a party from family dispute resolution in certain situations, such as when there has been child abuse or family violence, or there is a risk of child abuse or family violence. A party may also be exempt if they are unable to participate effectively in family dispute resolution due to an incapacity or physical remoteness from a provider.
Family Court of Western Australia
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The Family Court of Western Australia is a court that deals with family law matters including parenting cases, property settlement and divorce. It is made up of two parts – the Family Court itself, which is presided over by Judges, and the Magistrates Court, which is presided over by family law Magistrates.
Family Court Act 1997 (WA)
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The Family Court Act 1997 deals among other things with parenting and property matters for de facto couples in Western Australia.
Family consultants
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Independent court consultants that conduct child and family assessments. The reports compiled from these assessments provide important information and recommendations on the care and living arrangements for children ensuring that the child’s best interests are always kept at the forefront.
I
Interim order
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When a court case is ongoing, sometimes an issue arises that needs to be addressed before the case is completed. In these cases, the court may issue an interim order, which is a temporary measure until a final decision can be made.
Interim hearing
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A Family Court hearing to decide certain disputed issues in a case on an interim or temporary basis, by a Judge or Magistrate. Parties must submit their interim orders sought and supporting affidavit evidence before the interim hearing.
Initial financial contributions
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The assets (or liabilities) a party owns at the commencement of the relationship.
Independent legal advice
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Legal advice from an independent lawyer. Independent legal advice is a legal requirement for parties entering into a binding financial agreement particularly on whether the agreement is to a party’s advantage or disadvantage.
Independent Children’s Lawyer (ICL)
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An Independent Children’s Lawyer is court appointed to represent your child’s best. The ICL presents information to the court and may make recommendations to the Court on parenting orders that will be in a child’s best interests. The Independent Children’s Lawyer does not represent any person in the case.
J
Justice of the Peace
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A Justice of the Peace is a person authorised to carry out certain administrative duties in the community. For the purpose of signing Family Court documents, a Justice of the Peace is an authorised witness.
Just & equitable property settlement
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Consideration of the court when making a consent order or following a trial on a property matter. Family Court orders in respect of property matters must be fair or “just and equitable”.
Judicial officer
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If you have a court case, you will be assigned either a Registrar, Magistrate or Judge. A Judge typically presides over more serious or complex cases.
Judgment
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A ruling by a court in legal proceedings that determines the respective rights of the parties involved.
L
Living arrangements
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Refer to the living arrangements for children following the separation of their parents. The care and living arrangements of a child must be in a child’s best interests. General speaking this will include an arrangement for the child to spend either equal or substantial and significant time with a parent.
Legally married
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To be legally married in Australia you must comply with certain legal requirements including not be married to another person, not be under 18 years of age unless approved by the court and freely consent to marry. An authorised celebrant must solemnise the marriage.
M
Marriage certificate
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Your marriage certificate is the legal proof that you are married. Your celebrant or minister should give you a ceremonial copy of your marriage certificate on your wedding day. In Western Australia you can also get a copy of your marriage certificate from the Registry for Births, Deaths and Marriages.
Maintenance order
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After a relationship ends, one partner may be required to financially support the other partner if they are unable to meet their reasonable expenses from personal income or assets and if the paying partner can afford to do so. The Family Court can make a spousal or partner maintenance order.
P
Psychological harm
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Harm to a child’s mental or psychological health including harm that results from the child being subjected to, or exposed to, abuse, neglect or family violence.
Property settlement
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After the breakdown of a marriage or de facto relationship, the division of the parties’ property. The agreement can be formalised by way of consent orders filed with the Family Court or a Binding Financial Agreement (BFA).
Primary considerations definition
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The court’s focus is on the best interests of the child. There are two primary considerations and several additional considerations in determining what is in a child’s best interests. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Pre-trial status hearing
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A pre-trial hearing is a hearing attended by the parties and their lawyers presided over by the trial Magistrate or Judge. The purpose of the pre-trial hearing is to ensure both parties are properly prepared for trial.
Post separation binding financial agreement
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Provided the parties have complied with the legal requirements, a Binding Financial Agreement is a legally binding contract between you and your former spouse or partner that sets out how your property and finances are to be divided following your separation. A post separation binding financial agreement is not lodged with the Family Court. Each party must take independent legal advice on the advantages and disadvantages of the terms of the agreement.
Parenting plan
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A parenting plan is an written agreement about a child’s care and living arrangements. The plan is signed and dated by both parents. A parenting plan is not a court order and not legally enforceable however, a parenting plan made after Family Court parenting orders have been made, may override the court orders.
Parenting order
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Parenting orders may deal with a range of matters pertaining to children including parental responsibility, the person or persons a child is to live with, spend time with or communicate with. Parenting orders may also include provisions to protect a child from harm or the risk of harm.
Parental responsibility
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Parenting is a major responsibility that comes with many duties and responsibilities. Parents have to make major decisions for their children, including on medical and educational matters. Shared parental responsibility means that both parents equally share the decision-making in respect of their children.
R
Recovery orders
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A court ordered recovery allows a person to legally regain custody of a child. This is done by filing an application and presenting evidence to the court that the child should be returned to the primary care of the applicant.
Reasons for Judgment
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The Court’s explanation for its decision (judgement) following a trial.
Readiness Hearing
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The Readiness Hearing is a procedural hearing before a Registrar attended by the parties (and their lawyers if represented) to assess whether the parties have filed their trial documents. If the parties have done so, the matter will go into the list of cases awaiting trial with a trial date to be allocated at a Callover hearing.
S
Superannuation splitting orders
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Court-ordered transfers of superannuation entitlements from one party to another. This is done as part of final property orders (final financial settlement). The trustee of the superannuation fund must be given prior notice of the superannuation splitting orders the parties intend to seek of the Family Court.
Substantial & significant time
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In terms of parenting arrangements, when the children live primarily with one parent and spend less than equal time with the other parent. Substantial and significant time may include weekend and mid-week time.
Subpoena to give evidence and/or to produce documents
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The court issues an order requiring a person’s appearance at a trial or hearing to give testimony and/or to bring documents or other items to court.
Spousal maintenance
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Spousal maintenance is available to married couples pursuant to the Family Law Act 1975 (Cth.) provided certain criteria are met.
Sole parental responsibility
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In rare cases, one parent may be granted sole responsibility (sole decision-making power) for major decisions affecting the child until they reach the age of 18.
Single Expert Witness
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In complex parenting cases, the Family Court may get a child psychologist, social worker or psychiatrist to interview the parents and their children and prepare a report answering particular matters pertaining to risk issues and express an opinion on the care and living arrangements that are in a child’s best interest. The expert can also give evidence in court if the case goes to trial.
Sexual abuse
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When a child was assaulted in a sexual manner by a person, who used the child as a sexual object, either directly or indirectly.
Serious neglect
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When the child is exposed to a dangerous or life-threatening situation and there is a continued failure to provide a child with the basic necessities of life.
