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Glossary - Court Terms

GLOSSARY - Courts

The following legal terms are applicable to the Family Court of Australia and Federal Magistrates Court of Australia. A comprehensive guide to Latin legal terms can be found on WikipediA (not all of these Latin terms are used in Australia).

(Note: there is a separate glossary of Common Legal terms)

A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z 

A

Act
Law passed by parliament, known as a 'bill' before assent by governor or governor general. See also 'Statutes'

Address for service
The address given by a party where documents can be served on them by hand, post or some other form of electronic communication.

Adjourn
Defer or postpone a court event to another day.

Adjournment
When a case is put off to a later date.

Administrative law
The rules governing decision making by public officials.

Affidavit
A written statement of facts by a party or witness made under oath or affirmed before a notary public, justice of the peace, legal practitioner or other authorised officer. It can be used to support an application or can be tendered by a a party to a proceeding as evidence in court.

Agent
An independent person or company with authority to act on behalf of another.

Appeal
Application to a higher court to alter a decision of a lower court or tribunal, usually because of a mistake in law. A common example would be an appeal from a decision of a single judge, which would go to a bench of three judges (in the Federal Court of Australia). Another example would be an appeal from the Federal Court of Australia to the High Court of Australia.

Appearance
The coming to court as a party, either in person or through counsel.

Applicant
Person, an organisation who applies to the court to start a legal proceeding against another person or persons. Applicants, appellants, respondents, defendants, etc. are generally called 'parties'.

Application
A document that starts a legal proceeding. Also used as a broad term for what the applicant is doing in the court: he or she is 'making an application'.

Appellant
Person, that starts an appeal in a court. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Appellate courts
Courts to which an appeal is made.

B

Bar
The practicing members of the legal profession.

Barrister
A lawyer who presents cases in higher courts.

C

Case
The matter before the Court, when a person makes an application to a court for orders, that becomes the case before the court.

Case at first instance
The first time the facts of a case are considered not an appeal. Example: First Instance Judgment

Case law
The area of law developed by the courts while hearing and determining disputes.

Civil law
Laws regulating the behaviour of individuals; a form of private law.

Case Management Directions
A set of directions about how cases are managed by the Court to help parties achieve a just resolution of their dispute in a way which is prompt and economical.

Casetrack
The Court's integrated case management system.

Child Dispute Services
Child Dispute Services are provided by family consultants who are trained in social work or psychology. These services aim to assist parents and carers understand the needs of their children and to assist the Court make decisions that are in the best interests of children. In keeping with the new family law framework, the services are not confidential or privileged and information obtained through interviews with children, parents and others is admissible in Court proceedings.

Common law
Case law developed in common courts. This term is sometimes used to describe all case law or judge made law.

Consent orders
An agreement between the parties that is approved by the court and then becomes a court order. This terminology would apply to parties that have lodged Consent Orders without making an application to start a case

Consent orders (in a case)
This terminology would apply when a case has commenced and the parties settle during the case. Parties may agree to written terms that they wish the court to approve. (usually called 'Terms of Settlement') If the parties agree on the orders they seek, the court will usually make those orders. A judge can make consent orders in court, or in chambers without the parties having to appear in court.

Conciliation conference
A conference convened by legally trained registrars in the Family Courts. It involves all parties and their lawyers, aiming to resolve disputes in financial cases.

Constitution
A set of rules or principles according to which a state or other organisation is governed. A body of laws governing those who make laws. The Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament.

Contravention
When a court finds a party has not complied with (followed) a court order, that party is in contravention of (or has breached) the order.

Costs
This term is used for the legal fees or expenses of a party to a matter in the Court. On the determination of a case, the court has the discretion to 'award' costs and order that a party pays another party's legal expenses for the matter.

Counsel
A barrister.

Court hearing
The date and time when a case is scheduled to come before the court.

Court order
The actions the parties or a party must do to carry out a decision made by a court. An order may be either interim or final.

D

Determination of fact
The court's role to discover the truth.

Determination phase
Commences once the last resolution phase event has concluded without final resolution being achieved. It usually involves preparation for trial, and trial before the judge.

Directions
Before the trial or hearing of a matter a judge gives directions so that the parties involved will be properly ready for the hearing. Generally it involves setting down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the court.

Disclosure
Revealing all relevant information.

Discontinuance
Occurs when a party who has started legal proceedings decides to stop them without the court needing to determine the issues in dispute.

Discovery
The process by which the parties involved in legal proceedings inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

Discretion
The ability to choose whether to, or whether not to, proceed with a decision.

Discretionary
When the decision is made on what seems fit for the circumstances.

Divorce order
An order made by a court that ends a marriage.

E

Enforcement order
An order made by a court to make a party or person comply with (follow) an order.

estoppel
From Old French estoupail: 'stopper' or 'bung.' Legal rule that one cannot make an allegation or denial of fact that is contrary to one's previous actions or words.

Exhibit
A document or item produced in court for inspection by the court, to be shown to a witness or because it is referred to in an affidavit.

Ex parte hearing
A hearing where one party is not present and has not been given notice of the application before the court; usually reserved for urgent cases.

F

Family consultant
A professional trained in social work or psychology who is an expert in assessing inter personal relationships and the needs of children in high conflict families. They provide assistance to disputing families and the Court.

Federal Magistrate
Previously a judicial officer of the Federal Magistrates Court. The Court changed its name in July 2013 to the Federal Circuit Court and Federal Magistrates are now Judges of that Court.

Family dispute resolution
A process whereby a family dispute resolution practitioner assists people to resolve some or all of their disputes with each other following separation and/or divorce.

Family Law Courts
Comprise the Family Court of Australia and the Federal Magistrates Court of Australia.

Family Law Act 1975
The law in Australia which covers family law matters.

Family law registry
A public area at a Family Law Court where people can obtain information about the court and its processes and where parties file documents in relation to their case.

Family Report
A behavioural science assessment (by a Family Consultant) report that focuses on the best interests of children from a non-legal and independent perspective. Family Reports are ordered by judicial officers and provided by Court employed family consultants or approved, private report writers.

Family violence
Conduct (whether actual or threatened) by a person towards a family member, or property of a family member, that causes reasonable fear (or reasonable apprehension) for his/her personal wellbeing or safety.

Family violence order
An order made under Commonwealth, state or territory legislation to protect a person, including a child, from violence.

Filing
The procedure of lodging a document at a family law registry for placing on the court file.

Filing of documents
Lodging of documents usually with the court registry and having them accepted by the court.

Final orders
Means the order of the court that finally decides a case (brings the case to a close) that is commenced by an Application for Final Orders (Form 1).

Form
A particular document that must be completed and filed at court. Different forms are used for different family law matters.

Full Court
A Full Court consists of three or more judges together hearing an appeal from a decision of another judicial officer. In respect of some appeals from the Federal Magistrates Court, a Full Court may consist of a single judge.

H

Hearing
A proceeding conducted by the court to resolve issues or fact and/or law, in which evidence may be taken.

Independent children's lawyer
A lawyer appointed by the court to represent a child's interests in a case.

Injunction
A court order making a person do, or refrain from doing, something.

Interlocutory
Interlocutory proceedings are specific issues in a matter usually dealt with between the filing of the application and the giving of the final hearing and decision.

Interim application
An application for an order intended to continue until a further order of the Court.

Interim order
An order made by a court until another order or a final order is made.

J

Judgment
The final order or set of orders made by a judge, judicial registrar, federal magistrate after a court hearing, including reasons that usually set out the facts and law as applied in the case. Judgment is said to be 'reserved' when a judge needs time to consider all the evidence and argument and so postpones the delivery of the judgment from the date of the hearing in court to some later date. Judgment is said to be 'ex tempore' when a judge gives it orally immediately after the hearing of the matter.

Judicial discretion
The right of a judge to make a choice, eg. in issuing certain orders.

Judicial officer
A person who has been appointed to hear and decide cases; for instance, a judge or federal magistrate.

Judicial Registrar
A judicial officer who holds similar powers to a judge.

Jurisdiction
The authority given to a court and its judicial officers to apply the law. For example, the courts have jurisdiction under the Family Law Act 1975 in family law matters.

L

Leave
'Leave' is permission to do something. For example, if a person has left it too late to appeal (they are over the time set by law), it may be possible for that person to ask the court for permission to appeal anyway. This would be by an application 'for leave to appeal'.

Legislation
An act of parliament or piece of delegated legislation.

Liberty to apply
The right of a party to apply for further orders to be made by the court, without the party having to commence a new action or file a formal document in a proceeding.

Listing
An event before a judge or registrar that is usually organised in advance and recorded on the court's case management system and notice boards.

Litigants
People who are parties to a dispute before a court they are 'litigating' or involved in legal proceedings.

M

Magellan
A case management system designed to ensure that matters involving allegations of serious child abuse are dealt with as effectively and efficiently as possible.

Matter
A matter is the case, or the legal proceeding.

Mediation
From Latin mediare: 'to be in the middle.' A process in which an impartial third party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.

N

Natural justice
Rules of fair play originally developed in the common law courts.

Notice to produce
A document in which one party calls upon the other party to bring specific documents to the court at a specified time.

O

Obiter dictum
A judge's statement made during a judgment, but not part of the reason for the decision.

On the papers
To deal with an application on the written evidence and submissions filed by the parties, without taking oral evidence or submissions.

Order
The Court has the power to order a person to do certain things. Judicial registrars and registrars can only make certain types of orders. (Command of the Court)

Original jurisdiction
The authority or legal power to hear a case in the first instance.

P

Parental responsibility
The responsibility of each parent to make decisions about the care, welfare and development of their children. These responsibilities may be varied by agreement or by a court order.

Parenting plan
A written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.

Parties
Both the applicant and respondent are parties to the proceeding. If a third party is joined or someone is given permission to intervene they also become parties to the proceeding.

Party or parties
A person, organisation involved in a court case; for example, the applicant or respondent.

Pending
Pending matters are filed cases that have not yet been finalised by judgment or otherwise.

Pending cases inventory
An inventory of cases filed but not yet disposed of or finalised make up the Court's pending caseload.

Practice Directions
Practice Directions are issued by the Chief Justice or Chief Federal Magistrate for the assistance of parties and practitioners about the conduct of proceedings before the Court.

Precedents
Judgments quoted as an authority for deciding a similar set of facts; from an equivalent or higher court. precedent: (From Latin prcedens: 'going before in time').

Prima facie case
Prima facie is Latin for 'at first sight' or 'on first consideration.' A showing of sufficient evidence to initially establish an applicant's case. If such a case is made out, the opposing party (the respondent) is then required to respond; if not, the case will be dismissed. Normally applicable to urgent applications such as recovery orders.

Procedural fairness
The just administration of rules that provide how parties go about enforcing their legal rights.

R

Ratio decidenti
The legal reasoning on which a judgment is based.

Procedural order
An order made by a court of a practical nature. For example, the court may order the parties to attend family dispute resolution.

Registrar
A court lawyer who has been delegated power to perform certain tasks; for example, grant divorces, sign consent orders and decide the next step in a case. (Exercises powers delegated by the judges of the Court)

Resolution phase
Covers the period from the commencement of proceedings by filing an application to the point at which it is decided that a case should be prepared for trial.

Respondent
The person, organisation against whom legal proceedings have been started by the applicant. A respondent may or may not respond to the orders sought by the applicant.

Registry
An office of the Court that files court documents or accepts court documents for filing.

Return date
The date on which a matter is next listed before the court.

Rule of law
The concept that everyone obeys the law; no one is above it.

Rules
The Family Law Rules, sometimes referred to as the Rules of the Court, set out key obligations such as what forms must be used, when they must be filed and any other requirements of the Court. The Federal Magistrates Court has its own Rules.

S

Security for costs
If the court makes an order that the applicant provide security for costs for a certain sum, then the applicant must provide to the registry, security to that value. This is to ensure that, if the applicant loses the case, and is ordered to pay the respondent's costs, those costs will be paid.

Self Represented Litigant
People who are a party to a dispute before the Court, who have no legal representative and are conducting the matter on their own behalf.

Service
The process of sending or giving court documents to a party after they have been filed, in accordance with the rules of court. Service ensures that all parties have received the documents filed with a court.

Stand over
To adjourn a matter to another date.

Statutes
Acts of parliament. See also 'Act'

Statutory rule
The generic name for all types of delegated legislation.

Submission(s)
Legal argument (either oral or written) put to the court at a hearing.

Subpoena
A document issued in a legal proceeding requiring a person to give evidence or to produce documents to the court at a certain place and time. A subpoena is a court order, and if properly issued and served, then disobeyed, the disobedient person could be in contempt of court.

Summons
A document issued by a court directing a person to appear before it.

T

Tort
A civil wrong where one person unreasonably interferes with the rights of another.

Transcript
A record of the spoken evidence in a court case. All court hearings are recorded, except uncontested divorce hearings. The court does not order transcripts in all instances and does not provide transcripts to parties. If a party orders a transcript, they will be responsible for the costs.

Trial
Judicial examination and determination of issues between parties with or without a jury. The final hearing of a matter before a judge, federal magistrate, or judicial registrar. Having considered all the evidence presented, the judicial officer will make orders to finalise the matter.

Tribunal
A specialised adjudication body. The term is generally used to refer to administrative dispute resolution bodies other than courts.

W

Writ
A written court order to do or refrain from doing something.

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