DIVORCE DICTIONARY
Deciphering Divorce Jargon
─GLOSSARY
Divorce Dictionary
Divorce can be overwhelming enough without the legal jargon. Macquarie University have created a free online dictionary for Family Law and mediation terms, LawTerm Finder. We've collated some of the most useful legal terms so you can navigate divorce easier. Please remember these are to help you understand the fundamentals of family law and dispute resolution practices and should not be used as a substitute for legal advice.
A
The process for settling a conflict outside the court, usually with the help of a neutral person
The use of advice, given by an expert third party, in the process of resolving a dispute
B
The first principle in deciding parenting arrangements, to ensure a child's wellbeing and safety. External Link: Family Law Act (determining best interests).
C
The transfer of a child from one parent to the other in a supervised, child-focused environment
A meeting with a family consultant, ordered by the court, that includes adults and children involved in the case but not their lawyers
The payment made towards the care of a child, by the parent with whom the child does not live
A method for resolving conflict without a court hearing using two or more neutral third-parties
A dispute resolution process in which the opposing parties, and their lawyers, work together to reach a settlement and avoid going to court
A meeting of the two parties with a court registrar, to decide whether the case needs to proceed to a court hearing
a means of resolving conflict in which the mediator's role shifts from mediation to arbitration
Example:
1. Combined or hybrid dispute resolution processes are those where the dispute resolution practitioner plays multiple roles combining facilitative, advisory or determinative components.
2. In hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process.
Usage Note: Two types of "hybrid dispute resolution" are Con-Arb (conciliation-arbitration) and Med-Arb (mediation-arbitration).
D
the first step in a trial, at which the court sets out how the case is to be conducted
1. At a directions hearing the court can refer a dispute to mediation or arbitration with or without the consent of parties.
2. An initial directions hearing (the 'Scheduling Conference') presided over by a judge is set down not less than 45 days from the date of the filing of the application.
A procedure that requires a party in a case to identify and make available to the other party all relevant documents. 2. In mediation one does not have the protection of the discovery procedure available through the court
~ a term for the processes of settling family conflicts without going to court. 1. Dispute resolution provides you with an opportunity to improve your relationship with the other party/s and reach an agreement between yourselves, without the need for a court order.
1. Effective dispute resolution will have a number of characteristics, including a focus on relationships and on underlying needs and interests rather than just making deals.
E
An advisory process in which a neutral third party determines the key issues and procedures for the dispute to be resolved
Example:
1. Some ADR processes are non-confidential in their nature, e.g. early neutral evaluation.
2. Early Neutral Evaluation (ENE) is likely to be particularly useful in cases where the sides have very different assessments of the case based on different interpretations of the law or on different conclusions drawn from agreed-upon facts
The principle that both parents should be involved to the same extent in major decisions about the child's upbringing, whether the child lives with them or not. If a parenting order provides for equal shared parental responsibility, the court must consider the child spending equal time or substantial and significant time with each parent
the notional fifty-fifty division of time for each parent to have with the child
1. In making a decision for the child to spend equal time with each of the parents, the court must regard the best interests of the child as the paramount consideration.
2. The client could consider the option of arrangements being made for the child to spend equal time with each of the parents, subject to the caveats of being in the child's best interests and reasonably practicable.
Usage Note: "Equal time" is conditional on the court finding that there should be equal shared parental responsibility.
a set of established legal principles of justice and fairness, which the court may rely on in deciding a case.
1. The court is to start from an assumption that justice and equity require the disputed property to be divided between the parties in proportion to their respective contributions to the marriage as a whole.
Usage Note: The term "equity" is also used in a financial sense when calculating property settlements.
A non-judicial review of the dispute and assessment of the merits of the case.
Evaluative mediation is a process where a mediator guides negotiations between participants, evaluating the merits of the dispute and suggesting ways to resolve it.
A dispute resolution process in which the specialised issues in the case are decided by a dispute resolution practitioner who is highly qualified in the field.
1. The expert determination process is particularly suitable for single issues, or disputes of a limited size or scope.
2. When conducting an expert determination, the expert shall proceed as they see fit, without being bound to follow the rules of natural justice or the rules of evidence.
F
A means of conflict resolution in which a mediator helps disputants to solve the issues, rather than going directly to a court of law.
1. In facilitative mediation the mediator adopts a facilitative role, meaning that they have no advisory role about the content of the dispute.
Usage Note: In hybrid forms of mediation, the process combines facilitative, advisory or determinative components. The most common examples are "med-arb" (mediation followed by arbitration) and "con-arb" (conciliation followed by arbitration).
a specialist adviser appointed under the Family Law Act to assist in court proceedings and to write family reports1. A family consultant is a trained psychologist or social worker whose role is to assist the parties in working towards an agreement.
1. Communications with family consultants are not confidential except in special circumstances.
A non-judicial process for resolving the issues arising from separation and divorce.
1. A court has the power to order a person to attend family counselling or family dispute resolution.
2. The Family Law Act 1975 requires that a genuine attempt to resolve your dispute through family dispute resolution is made before going to court.
A person who is accredited or authorised under the Family Law Act to assist in relationship cases outside the court room.
1. A family dispute resolution practitioner helps people affected by separation or divorce to resolve some or all of their disputes with each other.
2. Family dispute resolution is a process in which a family dispute resolution practitioner, independent of all the parties, helps people resolve some or all of their disputes with each other during and after separation and divorce.
A document written by a family consultant for the court, to help it determine what is in the best interests of the child
A kind of family violence that involves withholding money and controlling how all the household income is spent. 1. Stopping a family member from earning their own money is a form of financial abuse.
H
A means of resolving conflict in which the mediator's role shifts from mediation to arbitration.
1. Combined or hybrid dispute resolution processes are those where the dispute resolution practitioner plays multiple roles combining facilitative, advisory or determinative components.
2. In hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process.
Usage Note: Two types of "hybrid dispute resolution" are Con-Arb (conciliation-arbitration) and Med-Arb (mediation-arbitration).
I
A legal practitioner appointed to help the court form a view on the child's best interests.
The specific duties of the Independent Children's Lawyer include acting impartially, ensuring the child's views are fully put before the Court, analysing reports, and endeavouring to reduce trauma for the child.
1. Combined or hybrid dispute resolution processes are those where the dispute resolution practitioner plays multiple roles combining facilitative, advisory or determinative components.
2. In hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process. Usage Note: Two types of "hybrid dispute resolution" are Con-Arb (conciliation-arbitration) and Med-Arb (mediation-arbitration).
The specific duties of the Independent Children's Lawyer include acting impartially, ensuring the child's views are fully put before the Court, analysing reports, and endeavouring to reduce trauma for the child.
1. Combined or hybrid dispute resolution processes are those where the dispute resolution practitioner plays multiple roles combining facilitative, advisory or determinative components.
2. In hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process. Usage Note: Two types of "hybrid dispute resolution" are Con-Arb (conciliation-arbitration) and Med-Arb (mediation-arbitration).
Representing a position that reflects issues which matter to the client.
1. Training in interest-based negotiation and consensual approaches to dispute resolution provides skills that are useful in life generally, as well as in business.
2. The closer the connection with litigation, the greater the focus on legal rights rather than interests based solutions is likely to be.
A brief presentation in court of legal matters that need to be decided before the final hearing.
1. At an interim hearing the court makes short term orders about what will happen, while a case awaits a final hearing and a final decision.
2. Interim hearings have a maximum time limit (in court) of 2 hours and the Judge makes a decision based on the evidence in written affidavits from the witnesses (rather than oral evidence and cross-examination).
Usage Note: Interim hearings usually address issues such as children's living arrangements, occupation of the matrimonial home, interim spouse maintenance, and injunctions to protect property.
J
An alternative dispute resolution process in which a judge leads the settlement negotiations between the parties
2. The specific duties of the Independent Children's Lawyer include acting impartially, ensuring the child's views are fully put before the Court, analysing reports, and endeavouring to reduce trauma for the child.
1. Combined or hybrid dispute resolution processes are those where the dispute resolution practitioner plays multiple roles combining facilitative, advisory or determinative components.
2. In hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process.
Usage Note: Two types of "hybrid dispute resolution" are Con-Arb (conciliation-arbitration) and Med-Arb (mediation-arbitration).
L
A process of advisory mediation involving a family consultant and a judge, followed by a judicial decision.
Example: When parents cannot agree on the best arrangements for their children, the case will proceed to a Less Adversarial Trial (LAT) and their family consultant will assist the Court with expert opinion and evidence about the children and the family.
Example: When parents cannot agree on the best arrangements for their children, the case will proceed to a Less Adversarial Trial (LAT) and their family consultant will assist the Court with expert opinion and evidence about the children and the family.
M
A set of payments ordered by the court for dependents
Compare child support.
Example:
1. Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions.
2. Although spouse maintenance and child maintenance are defined legally as separate matters, they are, in fact, inextricably linked.
The principle that a child should have a close and continuing involvement with both parents or any significant carers.
Example: One of the primary considerations that underpins the "best interests" principle is the importance to the child of developing meaningful relationships with both parents.
Example: One of the primary considerations that underpins the "best interests" principle is the importance to the child of developing meaningful relationships with both parents.
A general term for resolving conflict outside the courtroom using a neutral third party.
Effective or successful mediation relies on a number of factors: equal bargaining power and skills between the parties; voluntariness of the parties to participate; confidentiality of the negotiations; neutrality of the mediator.
A process in which parties to a dispute present their cases to a dispute resolution practitioner who advises on the issues, and on possible outcomes of the dispute.
Mini-trial is a process in which the parties present arguments and evidence to a neutral third party who provides advice as to the facts of the dispute, and advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved.
O
A process of resolving conflicts using electronic technology.
On-line ADR, ODR, eADR, cyber -ADR are processes where a substantial part, or all, of the communication in the ADR process takes place electronically, including via e-mail.
In ODR, the loss of images, physical reactions or non-verbal cues may be beneficial, and where violence between disputants is a real possibility, the online environment may provide appropriate safety.
In ODR, the loss of images, physical reactions or non-verbal cues may be beneficial, and where violence between disputants is a real possibility, the online environment may provide appropriate safety.
P
The principle that decisions about the welfare and development of children should be made by their parents or immediate caregivers.
Usage Note: Parental responsibility includes such decisions as: where the child lives; medical treatment; education; religious upbringing; the child's name; protection of the child from harm; passports and international travel; marriage of children under 18.
a set of instructions made by the court for the upbringing of a family's children.
A parenting order in relation to a child may be applied for by: either or both of the child's parents; or the child; or a grandparent of the child; or any other person concerned with the care, welfare or development of the child.
Usage Note: A parenting order may be based on an agreement between the parties (consent order) or a court decision.
A signed agreement between parents which sets out arrangements for the care and upbringing of their children.
1. A parenting plan is not legally enforceable, and different from a parenting order, which is made by the court.
2. Since 2003 the significance of parenting plans has diminished and any agreements reached between the parties are generally incorporated into consent orders.
A process to be carried out before starting a court case, in order to narrow the issues in dispute.
1. Each party is expected to make a genuine effort to resolve issues in dispute prior to starting a case, using the pre-action procedures.
2. The pre-action protocols are aimed at encouraging the early disclosure of relevant documents and information to better enable parties to assess their cases and settle.
A type of court order which finalises all financial relationship between parties to the marriage or de-facto relationship.
1. A property order may be made by consent between the parties to a marriage or de facto relationship, or by the judgement of a court.
2. The rules about the enforcement of property orders are quite complicated, and it is in your best interests to get legal advice before proceeding.
the sum total of all assets held jointly by a couple at the time of their separation
Example: Motor vehicles, boats, and caravans are commonly taken into account as part of the property pool.
The division of assets and debts acquired during the relationship.
Usage Note: Property settlements are based on both the contributions and the future needs of each person, and any children.
R
Representing the principle that balances the best interests of the child against the parents' capacity to make and maintain the agreed arrangements
1. The Court must consider whether time with the parents (whether it be equal or substantial and significant time) is reasonably practicable, before an order can be made.
2. If an equal time order is in the child's best interests and reasonably practicable, the court is not automatically bound to make such an order but must consider doing so.
S
~ the section of the Family Law Amendment Act 2006 which requires parties to attempt family dispute resolution before filing their case in court
~ the certificate from a Family Relationship Centre showing that mediation has been attempted.
Example:
1. Section 60I of the Family Law Act requires disputants engaged in parenting disputes to make a genuine effort at resolution before commencing court proceedings.
2. The object of requiring an s60I certificate is to ensure that all persons who have a parenting dispute make a genuine effort to resolve that dispute by FDR before applying for a Part VII order.
Usage Note: There are exceptions to the requirement to attend family dispute resolution in a limited range of circumstances, including urgency, inability to participate effectively, family violence or child abuse, and where the order sought is a consent order.
the breakup of a committed relationship between two adults.
A divorce order may be made if there has been at least 12 months separation between the parties immediately preceding the date of the filing of the application.
A formal discussion to find alternative ways of resolving a dispute.
The court can also hold pre-trial settlement conferences to attempt to resolve a dispute or at least to clarify the issues in dispute.
The principle that both parents contribute to, and are responsible for their children's welfare and upbringing.
1. There is much greater emphasis on shared parental responsibility and a growing recognition of the importance of both parents remaining actively involved in their children's lives after separation.
2. A key feature is the shift towards consideration of 'equal time' or 'substantial and significant time' for both parents, where shared parental responsibility is considered.
Usage Note: Note that sole parental responsibility may be allowed by a court order in relation to specific parenting facts or issues.
a way of resolving disputes between parties who have to meet in separate rooms (as in cases of domestic violence).
1. Shuttle mediation is where the parties are in different rooms or even different locations with the use of phone conferencing and the mediator "shuttles" between them.
2. Although shuttle mediation removes the immediate threat to the target of the violence, it does not remove the effects of past violence or the possibility of future retribution if the target does not do what the perpetrator wishes.
persistent interference by someone in another person’s relationships with friends and family, or preventing them from making contact with others.
1. Social abuse can involve restricting a person from spending time with family and friends, and isolating them from their support network.
2. Perpetrators of social abuse may continually say disparaging things about a current or former partner, to undermine their sense of self or to harm their reputation.
A set of payments provided by one partner to the other as financial support after separation.
1. Child care responsibilities are often the reason that women find themselves in need of spouse maintenance, given the effect those responsibilities have on women's workforce participation rate.
2. Parties who agree on issues of property and spousal maintenance can finalise these arrangements either in consent orders or in an agreement.
Usage Note: The American equivalent to the term "spousal maintenance" is "alimony".
a principle for parenting arrangements whereby the child spends a mix of weekends, weekdays, and holidays with each parent, as well as birthdays and special family events.
1. If the child spending equal time with both of you is not practical, you could consider an arrangement that allows both of you to spend substantial and significant time with the child, provided that this is reasonably practicable and best for the child.
2. With 'substantial and significant time' the focus is not just on the amount of time that each parent spends with the child but also on the type of time, i.e. events that are significant to the child (like sporting events, birthdays and concerts) and events significant to the parent such as Mothers' or Fathers' day, family weddings, christenings and birthdays.