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Family Law Parenting Terminology 101 – The Basics

A few months ago, a recently separated parent came to us for help with family law parenting arrangements for their young children. When we asked how everyone was adjusting and coping we smiled at the response that was provided. They said, ‘ you know, I never knew that going through separation and divorce was so much like traveling to a foreign country.’ When we prompted them to elaborate they continued, ‘well, like traveling to a foreign country, separation and divorce involves a long and exhausting journey, much like a long haul flight. Everything also feels really different, much like when you are trying to find your bearings in an unfamiliar overseas environment. And finally, when reading and talking about anything to do with separation and divorce the terminology is so confusing, much like trying to understand and communicate in another language.’

At New Way Lawyers our experienced family lawyers are akin to tour guides for people who are journeying through the process of separation and divorce.

They can provide strategies and techniques that will make the journey feel a little less overwhelming and exhausting and layout a tailored plan so you feel more confident and secure about the future. In addition, our family law team are great interpreters and they can explain any confusing legal terms to you in plain English. We have however also put together the following translation guide to explain commonly used terminology in family law parenting matters.

Family Law Act 1975 (Cth)

The Family Law Act is federal piece of legislation that covers the main issues that arise from separation, for example parenting arrangements, property division, spousal support and divorce. This legislation covers all states and territories except for Western Australia.

The Federal Circuit Court of Australia and The Family Court of Australia

The Federal Circuit Court of Australia and the Family Court of Australia are both federal courts and between them they hear and deal with family law matters relating to parenting arrangements, property division, spousal support and divorce. The Federal Circuit Court deals with nearly 80% of all family law matters filed in the federal courts while the Family Court deals with the remaining 20% of matters. The Family Court generally hears more complex matters and appeals.

Family dispute resolution

Family dispute resolution (FDR) is a term used in the Family Law Act to describe processes such as mediation and conciliation which provide a forum for people who have separated to resolve their disputes with one another. It is a requirement of the Family Law Act that parties attend family dispute resolution before applying to the Court for orders relating to children, subject to certain limited exceptions.

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Family dispute resolution practitioner

A family dispute resolution practitioner (FDRP) is a person who has completed the required training by the Federal Attorney Generals Department and who is registered to conduct family dispute resolution.

Section 60I certificate

A section 60I certificate is a certificate issued by a Family Dispute Resolution Practitioner (FDRP) pursuant to the Family Law Act. The certificate demonstrates to the Federal Circuit Court of Family Court that the parties attempted to resolve their dispute prior to commencing court proceedings. There are 5 different section 60I certificates that can be issued by a Family Dispute Resolution Practitioner (FDRP):

  1.  The person did not attend FDR due to the refusal of the other person or people to attend;
  2.  The person did not attend FDR because the practitioner did not consider it would be appropriate to conduct FDR;
  3.  The parties attended FDR, conducted by the practitioner, and all people made a genuine effort to resolve the issue or issues in dispute;
  4.  The parties attended FDR, conducted by the practitioner, but one or more of them did not make a genuine effort to resolve the issue or issues in dispute; or
  5. The parties began FDR, but part way through the practitioner decided it was not appropriate to continue.

A section 60I certificate can only be used for 12 months from the date it was issued.

 

Verbal Parenting Arrangement 

A verbal parenting arrangement is an undocumented agreement between separated parents regarding where children will live and arrangements for them to spend time with the other parent. The agreement can also cover things such as education, health and religious arrangements for the children. A verbal parenting arrangement is not legally binding or enforceable.

Parenting Plan

A parenting plan is a written agreement regarding matters for the children that is dated and signed by separated parents. It can cover a broad range of matters relating to children. A parenting plan is not legally enforceable or binding.

Consent Parenting Order 

A consent parenting order is where separated parents reach an agreement about parenting matters and then make an application to the Court to have the agreement recognised as a formal court order. Consent orders are legally binding and enforceable.

Parenting Order

A parenting order is a decision about parenting matters for the children that has been made by the Court. The parenting order will cover who makes decisions about the welfare of the children and where they live. A parenting order is legally binding and enforceable.

 

Parental Responsibility

The term parental responsibility is defined in section 61B of the Family Law Act as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. Prior to any consent parenting order or parenting order being made, each parent of a minor child has parental responsibility for the Child, regardless of whether the parents are separated on in a relationship.

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Custody

Custody is an old term that is no longer used under the Family Law Act. Instead, the terms parental responsibility and lives with and spends time with have replaced the term of custody.

Contravention Proceedings

Contravention proceedings are proceedings that are made to the Court where one party claims the other party is not complying with the terms of a Court Order. When hearing contravention proceedings the Court has the power to enforce compliance with the orders through various measures such as varying the orders, imposing counseling or imposing fines.