Legal disputes can be stressful and sometimes difficult to manage in otherwise busy lives. In our experience, people who have a better understanding of legal processes usually find these processes less stressful and easier to manage. The first step is learning what the most common legal words and phrases mean.
Applicant – this is the person who first applies to a court for orders.
Respondent – is any person named as a party to a court case. A respondent may or may not respond to the orders sought by the applicant by seeking the same or different orders.
Filing – this is the procedure of lodging a document at a family law registry for placing on the court file.
Address for Service – this is the address where documents can be served (given to) on a party to a court case. Each party is required to file in the Court a Notice of Address for Service.
Affidavit – this a written ‘statement’ by either a party to the court case or witness in the court case. What a person writes in their affidavit constitutes their evidence. A Court cannot make any decisions without evidence. An affidavit is the primary method of producing evidence in family law court proceedings.
Mention – this is the date and time when a court case is scheduled to come before the court for the making of procedural orders only. In contrast to a hearing, it is not the occasion to present evidence and argue the case.
Hearing – this is the date and time when a court case is scheduled to come before the court. It is the occasion when both parties are able to put forward all of their evidence so that the Judge can then make a decision.
Ex Parte Hearing – this is a hearing where one party is not present and has not been told about the applicant’s application to the Court. This court event is usually reserved for urgent matters.
Interim Orders – these are the orders that a Court makes on a ‘temporary’ basis until the parties (and experts) have had time to gather all of the relevant evidenced to place before the Court. Where there is no agreement between the parties as to what interim orders should be made, the orders will be made after a contested Interim Hearing. Interim orders can also be purely procedural (eg the preparation of an expert report or valuation of property). Purely procedural orders are often made by consent.
Final Orders – these are the orders that a Court makes after a contested Trial. Final Orders bring the court case to an end.
Consent Order – this is an agreement between the parties that is approved by the Court and converted into Court Orders. Consent Orders (in relation to children and / or property) can be made on an application to the Court without a contested court case. Where a court case is already underway, Consent Orders can be made at any time during the court case to resolve some or all of the issues being disputed.
Contravention – when a Court finds that a party has not complied with a court order, that party is said to be in contravention of (or having breached) the order/s. The Court has a broad power to impose penalties and make other orders in the event of a contravention.
Trial – otherwise referred to a Final Hearing. This is the occasion when all of the evidence is placed before the Court. Each of the parties to the court case has an opportunity to ‘test’ the evidence through cross-examination of witness about what they have said in the affidavits or in the witness box. At the conclusion of a Trial the Judge will make Final Orders.
Family Dispute Resolution – Like a ‘mediation’, a family dispute resolution practitioner helps people to resolve some or all of their disputes with each other.
Financial Conference – The first substantive step in all financial cases (matrimonial / de facto property cases) is for the parties to attend a Financial Conference (sometimes called a ‘conciliation conference’). A Financial Conference is similar to a mediation. The Registrar of the Court conducts the conference much like a mediator. At a Financial Conference both parties are expected to put forward in clear terms how they say the property should be divided and why. If agreement can be reached at the Conference for Final Orders by consent, the Registrar has the power to make those Orders on the day, thereby bringing the property aspect of the court case to an end.
Family Consultant – a psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce, often appointed by the Court to prepare an independent expert report in a court case.
Child Dispute Conference – this is meeting convened by the Court between the parties to a court case in relation to children (usually the parents) and a Family Consultant. The Family Consultant’s role is to talk to both parents in a semi-formal setting and document what each party says are the issues that concern them and how they envisage the matter will be resolved (what they seek from the Court). The Family Consultant then prepares a report to the Court which sets out the parties’ respective concerns and proposals, and makes recommendations as to what further steps the Court might take to determine the matter and / or assist the parties to reach agreement between themselves.
Child Inclusive Conference – this is also meeting convened by the Court between the parties to a court case in relation to children (usually the parents), a Family Consultant, and the children themselves. The Family Consultant’s role is to talk to and observe both parents and the children (or at least observe the children’s interactions with both parents) in a semi-formal setting and document what each party says are the issues and how they might be resolved and also what the children themselves say or exhibit in their behaviour. The Family Consultant then prepares a report to the Court which sets out the parties’ respective concerns and proposals, and makes recommendations as to what further steps the Court might take to determine the matter and / or assist the parties to reach agreement between themselves.
Independent Children’s Lawyer – A lawyer who is a party to a court case to represent the best interests of the children in the court case. This person is usually responsible for organising various reports and assessments of the parties and the children. Their role includes gathering and producing evidence, including independent expert evidence, for the Court and making recommendations to the Court about what orders are and are not likely to be in the children’s best interests.
Family Report – a document prepared by a Family Consultant or private psychologist, psychiatrist or social worker, which is an assessment of the dynamics of a family. A Family Report is prepared to assist the Court to make a decision in a case about children.A Family Report is, once filed in the form of an affidavit, expert evidence and the report writer is said to be an expert witness.
Subpoena – this is a document issued by the Court, at the request of a party, requiring a person to produce documents and/or give evidence to the Court. Subpoenaed documents are often relied upon as independent evidence to prove or disprove what a party has said in an affidavit.
Family violence – is defined by section 4AB(1) of the Family Law Act 1975. It means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), 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.
Abuse – is defined by section 4 of the Family Law Act 1975. In relation to a child, ‘abuse’ means:
Family Violence Order – this is a Court Order made under a prescribed law of a State or Territory to protect a person from family violence. In Queensland, a family violence order is called a ‘Protection Order’ It is made in the Queensland Magistrates Court in accordance with the Domestic and Family Violence Protection Act 2012 (Qld).
© Cope Family Law 2020