A guide to common family law terms

Relationship breakdowns and separations can be a stressful time as people navigate their parenting matters, property settlements and establish their ‘new normal’. Being involved in the family law system for the first time often means being exposed to a range of new terminology and legal jargon. This can add to an already potentially challenging experience. Below we have compiled a list of commonly used terms in family law to assist our clients from the outset of their family law matter.

Binding financial agreement:

a binding agreement or ‘contract’ that parties to a relationship may enter into either before commencing a de facto relationship or marriage, during such relationship or after the end of their relationship which seeks to formalise how their property will be divided in the event of separation. It may also include provisions relating to spousal maintenance.

Child abuse:

means conduct such as assault, sexual assault, serious neglect or causing serious psychological harm (including through the child being exposed or subjected to family violence) to a child.

Child support:

financial support paid by parents to assist with the cost of raising a child or children aged under 18. It is usually paid from one parent to another. The law is clear that both parents have a duty to provide financial support for their children. A formal assessment of child support by Services Australia takes into account factors including the number of children and their ages, both parents’ income and the percentage of care each parent provides for the children.

Cohabitation:

for the purposes of a family law property settlement, cohabitation is usually when the parties commence living together. In family law property settlements, contributions to the relationship will usually be considered from the time when the parties began living together, not necessarily when the relationship first began.

Consent orders:

an agreement between the parties that is submitted and approved by the court and then subsequently becomes a court order. Parties to a family law matter may utilise consent orders for a range of issues, including but not limited to finalising property and/or parenting matters.

De facto:

a couple who is not married but that have been in a relationship where they have usually lived together on a genuine domestic basis. If there is doubt as to the existence of a de facto relationship, a wide range of factors will be taken into consideration including the duration of the relationship, degree of financial dependence and support, whether a sexual relationship exists and the degree of mutual commitment to a shared life.

Duty of disclosure:

the parties to a family law matter have a duty of disclosure, meaning they must provide each other with all information relevant to an issue in the case or matter. For example, to negotiate a property settlement, the parties will usually disclose documents to each other such as tax returns and payslips so their income can be confirmed.

Family Dispute Resolution (FDR):

a special type of mediation for assisting separating parties to come agreement on parenting arrangements for their child/children. During FDR the parties will discuss the issues in dispute and consider different options for settlement, while being encouraged to focus on the needs and ‘best interests’ of their children. FDR usually involves an independent and accredited mediation practitioner.

Family violence:

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. A wide range of behaviour or conduct can constitute family violence including but not limited to assault, derogatory taunts, denying financial autonomy or support and preventing the family member from making or keeping connections with his or her family, friends or culture.

Independent children's lawyer:

a specially trained and accredited lawyer who represents the child's/children’s best interests in family law proceedings and is appointed by court order.

Lives with and spends time with:

in Australia, we don’t use the terms “custody” or “contact” in relation to family law parenting matters. Instead we refer to a division in the time a child has with their parent/s as “lives with” and “spends time with”.

Parental responsibility:

all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. For example, the ability to make long term decisions for children such as school enrolment and medical treatment. Each of the parents of a child who is under 18 have parental responsibility for that child, unless the court orders otherwise.  

Parenting plan:

a non-binding written agreement between the parties (with or without the help of a mediator and/or lawyer) setting out parenting arrangements for children. It is not approved by or filed with the court.

Parties:

generally refers to the separated couple in a family law matter, also known as the Applicant and Respondent if family law proceedings are issued in the court. Additional parties to a family law matter can be involved in some circumstances, for example a trustee in bankruptcy or another interested person/party.

Property Pool/Asset Pool:

is the pool of all of the assets and liabilities, including superannuation of the parties to a relationship. It includes all assets and liabilities in either parties’ names, or in joint names, or held on behalf of or for the benefit of either party. It should be noted that the asset pool usually also includes assets and liabilities accumulated post separation, but only those prior to a family law property settlement being formalised.

Relocation:

where one parent wishes to move or ‘relocate’ with the children, sometimes away from where the other parent lives including interstate or overseas.

Separation:

Separation is when a couple or a person involved in a relationship considers that the relationship is at an end. This can also sometimes include when the couple cease living together. Factors that can help to determine separation may include whether one or both of the parties consider themselves separated, or act as if separated and/or other people see the parties as separated. Married couples must be separated for a period of at least 12 months in order to apply for a divorce.

Separation under one roof:

when parties to a relationship or marriage separate but continue to live in the same home for any period of time after separation. That is, the relationship may be at an end however for practical reasons the parties remain living together in the home ‘under one roof’. Separation under one roof can sometimes be difficult to evidence but may include the division of finances, changes in sleeping arrangements and the lack of a sexual relationship.

Spousal maintenance:

a payment from one party or ‘spouse’ to another party in circumstances where he or she is unable to financially support him or herself, such as being unemployed, or due to having the primary care of children under 18 years of age, or having an age, physical or mental incapacity which impacts on their ability to financially support themselves. It may be periodic maintenance, lump sum maintenance or payment for specific expenses. It should be noted that spousal maintenance is only applicable in certain circumstances and legal advice will usually be required in relation to same.

The family law team at Harwood Andrews can assist with all aspects of a family law matter including negotiating and formalising property settlements and parenting arrangements, divorce and spousal maintenance. We can assist to pursue a timely and cost-effective resolution to our clients’ family law matters.

Natasha Vassallo
Lawyer
T 03 5225 5237
E nvassallo@ha.legal

Tara Paatsch
Special Counsel
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal