Chapter 8: Legal language – what does it all mean?

 Download this chapter: Chapters 8 and 9: Legal language and Referrals and resources (PDF)

These terms are highlighted in bold the first time they appear in each chapter of this booklet.

Action

A dispute that is taken to court. Also called ‘proceedings’, a ‘case’, a ‘matter’ or a ‘suit’.

Adjournment

Putting off a court case until a later date.

Affidavit

A written statement of facts and circumstances, sworn or affirmed to be the truth and signed in front of a solicitor or Justice of the Peace. Affidavits are used as evidence in court cases.

Affirmation

A promise to tell the truth when giving evidence in court either in person or by signing an affidavit.

Applicant

A person who starts a court case.

Application

The document filed by the applicant to start a court case.

Apprehended domestic violence order (ADVO)

A violence protection order against a person with whom you have domestic relationship (eg a spouse or family member).

Apprehended personal violence order (APVO)

A violence protection order against a person with whom you do not have a domestic relationship (eg a neighbour).

Barrister

A lawyer who specialises in court work.

Binding financial agreement

An enforceable agreement dealing with the division of property, and/or payment of maintenance. It can be entered into before, during or after marriage.

Child support

Payments that are made by a parent for the benefit of a child.

NSW Community Services

The government agency in NSW responsible for child protection.

Conflict of interest

A clash between the different duties that a lawyer has to clients, the Courts, other lawyers or the public. For example, a lawyer has a duty to keep client information confidential and to put the interests of the client before others. A lawyer cannot fulfil these duties by representing two people on opposing sides of a case or in some cases acting against a past client.

Contravention

When a party does not follow (breaches) the family law orders made by the Court.

Client

A person who employs a lawyer.

Consent order 

A court order based on agreed terms between parties to a dispute. It is just as enforceable as any other court order. It can be about property or children or both.

Contested or defended action

A dispute in court where the respondent will not agree with all or part of an application.

De facto relationship

A relationship between two adults who live together as a couple and who are not married or related by family.

De facto partner

A partner in a de facto relationship (formerly de facto spouse).

Defendant

In the context of AVO proceedings, the defendant is the person against whom an application is made or who has an AVO against them.

Deponent

A person who swears or affirms an affidavit.

Dispense with service

A court order which means that you do not have to give your application or other court documents to the other party.

Dissolution of marriage

Divorce, the legal end of marriage.

Divorce Kit

A kit produced by the Family Law Courts which provides the steps in applying for and obtaining a divorce and the application for divorce form.

Domestic Relationship

You have a domestic relationship (as used in NSW Domestic Violence law) with another person if you:

  • Are/were married
  • Are/were in a de facto relationship
  • Have/have had an intimate personal relationship eg. Boyfriend/girlfriend – doesn’t need to include sexual relationship
  • Live/lived with each other
  • Live/lived in same residential facility at the same time
  • Are/were cared for by the other person (paid or unpaid carers included)
  • Are/were a relative of the other person
  • Are part of the same extended family or kinship group (Aboriginal/Torres Strait Islander person)

Domestic Violence Liaison Officer

A Domestic Violence Liaison Officer (DVLO) is a specialist police officer, trained in the dynamics of domestic and family violence, child protection procedures, victim support and court AVO processes.

The role of the DVLO is to:

  • provide advice to police and victims;
  • assist in referral to appropriate support agencies;
  • assist victims through the court process for Apprehended Violence Orders; and
  • monitor repeat victims and perpetrators.

Equal shared parental responsibility

This is how the responsibility for the major decisions in a child’s life is shared between the parents once a family court order is made. Parents must talk to each other and agree about major long terms issues including: the child’s education, religion and culture, health, name and changes to living arrangements. Equal shared parental responsibility does not mean that parents spend equal time with the child or children.

Equal time

Each parent spends time with a child on an equal basis.

Error of law

A mistake in the way the judge interpreted or applied the law.

Ex parte order

A court order made without the other party to the application being present.

Family Consultant

A family consultant is either a psychologist or social worker who specialises in family issues arising from separation and divorce and who is employed by the family law courts to help make decisions about a child’s living arrangements. They prepare Family Reports.

Family Dispute Resolution (FDR)

Family Dispute Resolution also known as FDR is a compulsory mediation process where the parties (usually the parents of the child) are encouraged and supported to try and make a decision about the care of their children. There are exceptions to the compulsory requirement to mediate.

Family Dispute Resolution Practitioner (FDRP)

An independent person who helps separating couples to resolve some or all of their family law issues through mediation. They must complete an accreditation course and be registered with the Federal Attorney General’s Department.

Family Law Conference

The Legal Aid family dispute resolution service.

Family Law Courts

The Family Court or the Federal Circuit Court.

Family Member

Usually refers to a person you are or were in a relationship with or have a family connection to. The Family Law Act defines family member for the purposes of certain sections of the Act, particularly in relation to Family Violence. See also Domestic Relationship and Relative.

Family Relationship Centre (FRC)

Family Relationship Centres or FRCs are government funded agencies which provide family dispute resolution services to assist separated parents to make decisions about children after separation.

Family Report

A Family Report is a report prepared by a Family Consultant to help the Court make a decision in a family law matter about children.

Family Tax Benefit Part A

The primary payment from the federal government to help with the cost of raising children. It is usually paid to a parent or guardian for a child aged less than 21 years or a dependent full time student aged between 21 and 24 years.

Family Tax Benefit Part B

An extra payment to help families with the cost of raising children where there is only one main income earner (including sole parent families) with a dependent full time student up to the age of 18 years.

Family violence (as defined in the Family Law Act)

Family Violence (as defined in the Family Law Act) 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.

Examples of behaviour that may constitute family violence include (but are not limited to):

(a)  an assault; or

(b)  a sexual assault or other sexually abusive behaviour; or

(c)  stalking; or

(d)  repeated name-calling; or

(e)  intentionally damaging or destroying property; or

(f)  intentionally causing death or injury to an animal; or

(g)  unreasonably stopping a family member from having access to and control of money; or

(h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Family Violence (as used in reference to ADVOs in NSW)

Family violence and domestic violence are often used to describe the same thing when people are talking about getting an AVO. When family violence is in this context, it means violence from a family member or other person within a Domestic Relationship. See above definition of Apprehended Domestic Violence Order and Domestic Relationship for more information.

Federal Circuit Court

A court that is part of the federal court system designed to deal with less complex family law matters and divorce applications. Cases are heard by Federal Judges.

Independent children’s lawyer

A solicitor appointed by the Court to represent the interests of a child or children in a family law case.

Injunction

A court order that forbids a person from doing something or commands him or her to do something. Also known as a restraining order.

Interim application / order

An application to the Court for a temporary order until the Court can hear all the evidence. For the purposes of this booklet, it might apply to interim AVO orders or interim orders about property or children.

Irretrievable breakdown of marriage

No reasonable likelihood of getting back together. Under family law this is proved by 12 months separation.

Judgment

A decision by a judge resolving a dispute after a hearing, together with their reasons for the decision.

Justice of the Peace

A person who has formal authority to witness legal documents.

Lawyer

A general word for solicitors and barristers.

Litigation

A court dispute.

Local Court

A state court where a magistrate hears cases and makes decisions.

Magistrate’s Court

Same as a Local Court.

Maintenance

Money paid by one former partner for the support of the other former partner and/or their children.

Mention

A brief hearing when the Court gives a case some attention but not a full hearing.

Oath

A promise to tell the truth sworn on a religious book that is important to the person making the promise.

Party or parties

People involved in a court case or a dispute – usually, an applicant and a respondent.

Parenting order

Any order about children made under the Family Law Act.

Parental responsibility

All the duties, powers and responsibilities and authority that parents have for their children. Parents have joint parental responsibility for their children until a court orders otherwise.

Property

Any assets of value including a house, investment properties, cars, boats, trailers, cash in bank accounts, superannuation, household contents, shares, or interest in a business. Even if the property is in one spouse or partner’s name, it can still be divided in a family law property settlement.

Provisional Order

A provisional AVO is an order made by the court in response to an urgent application by the police who believe someone needs immediate protection.

Recovery order

An order of the Court that directs a person or people (such as the police) to find, recover and deliver a child to a parent of the child; a person who has parental responsibility for the child, or a person with parenting orders that state the child must live with, spend time with or communicate with them.

Registrar

A person who works for the Court and provides information, assistance with court forms and may make decisions in Court about procedural issues. In Local Courts Registrars can take applications for AVOs.

Relative

A person is a relative if they are or were:

(a) A father, mother, grandfather, grandmother, step-father or step-mother of the person; or

(b) A son, daughter, grandson, grand-daughter, step-son or step-daughter of the person; or

(c) A brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or

(d) An uncle or aunt of the person; or

(e) A nephew or niece of the person; or

(f)  A cousin of the person; or

(g) If the person is or was married, a person who is or was a relative, of the kind described in (a) – (f), of the person’s spouse; or

(h) If the person is or was in a de facto relationship with another person, a person who would be a relative of a kind described in (a) – (f) if the persons in that de facto relationship were or had been married to each other.

Respondent

The other party in an application you make to the Court.

Response

A form lodged to respond to an Application in a family law matter.

Section 60I certificate

A section 60I certificate enables a person to file an application in court for orders about their children. Unless a person is eligible for an exception to the requirement to participate in family dispute resolution (FDR), all parties must attempt to resolve their dispute using FDR prior to filing in Court. Section 60I certificates can only be signed by an accredited FDR practitioner.

Separation

The situation when a married or de facto couple lead separate lives and usually live apart. There is no need to formally register when you first separate.

Serve documents / Service of documents

A process where the documents filed in a court case are given to the other party. All documents in a court case must be formally given to the other party before the Court will hear the case. Different rules for service apply in different cases.

Settlement

An agreement between parties to a dispute about how to resolve it without a court decision.

Solicitor

A lawyer who may give clients legal advice, help with legal problems and who may appear in court.

Spouse

Another word for partner, including husband, wife, heterosexual and same sex de facto partners.

Stalking

A form of harassment when someone follows you around or waits outside your home or workplace.

Status quo

A Latin phrase that means ‘the way things are’.  A phrase that refers to current situation or circumstances.

Stay of execution

A court order that temporarily stops a court judgement from being carried out.

Subpoena

A court order to make a witness come to court to give evidence and/or to bring documents to court.

Substantial and significant time

In family law, time that enables parents to be involved in daily routines and special occasions and includes weekends, weekdays and holiday times.

Substituted service

A court order that enables you to serve your court documents on a relative or friend of the respondent or put a notice in the paper, instead of serving them on the other party in circumstances where you do not have an address or do not know where he or she is.

Victims Services

The NSW government agency that provides counselling, financial support and recognition payments for people who have been injured as a result of an act of violence in NSW.

Women’s Domestic Violence Court Advocacy Service

Women’s Domestic Violence Court Advocacy Services or WDVCAS provide assistance and support to women experiencing domestic violence.  Their workers can help women experiencing domestic violence by providing information about ADVOs and the court process, support at court, assistance with access to legal representation if required and referrals to counselling, accommodation or support groups.

Witness

Any person who tells a court what she or he knows about a case.


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