Key definitions

This list of key definitions form part of Victoria Legal Aid’s Commonwealth family law and child support guidelines.

The definitions are designed to make it easier for lawyers to apply the eligibility criteria set out in the guidelines. While some words or terms may have a legal meaning or include references to sections of applicable legislation, they are not intended to be statements of law.

Where a word or term appearing in the guidelines is defined in the list of key definitions, the ordinary meaning of the word applies unless the word is linked to the key definitions.

List of key definitions

Adult child maintenance

An order made under s. 66L of the Family Law Act 1975 (Cth) for the maintenance of a child aged 18 or over where it is necessary:

• to enable the child to complete his or her education
  or
• because of a mental or physical disability of the child.

Arrears

Child support, child maintenance or spousal maintenance required to be paid under an administrative assessment by Department of Families, Fairness and Housing (Child Support), a court order or a legally enforceable agreement which has not been paid.

ATLAS

Victoria Legal Aid's online system for lawyers to lodge applications for grants of legal assistance.

Best interests of the child

For the purposes of deciding whether a person who is not a parent of a child should receive a grant of assistance in a parenting dispute relating to the child, the ‘best interests’ consideration involves an evaluation of a range of factors that are likely to contribute to the best outcome for the child. The assessment may involve consideration of the principles set out in s. 60CC of the Family Law Act 1975 (Cth), but is not confined to consideration of these principles.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Bilateral agreements on parental abduction

Individual agreements on parental child abduction between Australia and countries which are not signatories to the Hague Child Abduction Convention. Australia has bilateral agreements on international parental child abduction with Egypt and Lebanon.

Broadband

A broadband grant is an inclusive grant which enables lawyers to claim for further work undertaken, without the need to apply for an extension of assistance. For example, under a stage 2E broadband grant, where additional court appearances are required in a matter, up to one subsequent hearing, one compliance and readiness hearing and one trial management hearing fees (2F grants) may be claimed on the same invoice.

Fees characterised as lump sum fees are exclusive fees. Under a grant for a lump sum fee, a lawyer is only entitled to the fee listed, and must lodge an application for an extension for any additional fees for work undertaken. The fee tables indicate which grants are broadband and which are lump sum.

Child

A person under the age of 18 who is:

• the subject of the dispute for which assistance is sought

and

• the biological, donor conceived or adopted child of a party to a dispute

or

• has a relationship with a party to a parenting dispute who is not their parent but is significant to their care, welfare and development

or

• the parent of a child who is the subject of a dispute for which assistance is sought.

Where the term ‘child’ appears in the guidelines and is not linked to this definition, the ordinary meaning of the word applies.

Child maintenance

Financial support provided by one or both parents to the parent or carer of a child under either an order made pursuant to s. 66G of the Family Law Act 1975 (Cth) or a legally enforceable agreement.

Child support

Financial support provided by one or both parents to the other parent or carer of a child under an administrative assessment, a court order or a legally enforceable agreement registered with Department of Families, Fairness and Housing (Child Support).

Child Support Legal Service

A VLA service that provides state-wide, in-house legal assistance to help eligible parents who have legal problems in relation to receiving or paying child maintenance, child support or spousal maintenance. The Child Support Legal Service (CSLS) may:

• give advice
• prepare documents, and/or
• represent people in court.

The CSLS provides a telephone information and advice service and regularly visits VLA offices and most major regional centres. Community legal centres provide a similar child support service.

Requests for assistance from the CSLS are made directly to us, not by application for a grant under the guidelines. However, a grant of legal assistance under the guidelines may be available if the CSLS is unable to help a person.

Child Support legislation

The Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

Contempt of court

Behaviour that amounts to wilful disregard or disrespect of the authority of the court. It can include the any of the following:

• improper behaviour in court
• attempting to influence participants in proceedings
• failing to comply with a court order or an undertaking given to a court.

Contempt of court is a criminal offence. Charges of contempt are generally laid where a person behaves in court in a way that interferes with court processes.

Cost ceiling

The maximum that we will pay for any one family law dispute. Some proceedings and disputes are treated as a new matter for the purposes of calculating cost ceilings. This means that we will not include the amount of the grant when calculating the cost ceiling for the previous or substantive matters. Interpreter or translator fees, rural travel expenses and accommodation costs are also excluded from cost ceiling calculations.

Costs order

An order made by the court for one party in legal proceedings to pay the legal costs incurred by another party, including the professional fees of the lawyer and any disbursements. For more information on costs orders, see Family law costs management.

Court-based Dispute Resolution Conference

A court-based dispute resolution conference (DRC) is family dispute resolution which is conducted by the Federal Circuit and Family Court of Australia (FCFCOA). For more information, see the FCFCOA website.

Cultural and/or language barriers

For the purpose of determining whether a person is a family law priority client, the following are examples of a person experiencing cultural and/or language barriers:

• a recently arrived immigrant from a country where there is a fear of government and statutory agencies, whose first language is a language other than English and who has low levels of English language proficiency
• a person who has recently arrived in Australia as a refugee or humanitarian entrant
• a person who experiences a power imbalance either:
  • in their relationship with the other party to the dispute, due to cultural differences
    or
  • in their cultural community, on the basis of gender or other characteristics.

For further examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Current reported allegations

For the purposes of determining whether a dispute is an urgent matter, current reported allegations are reports alleging abuse of a child made to the police, state child welfare authority (for example, the Victorian Department of Families, Fairness and Housing), a medical practitioner, or other person (such as a maternal child health nurse or teacher) that:

• are relevant to the current proceedings for which a person is seeking assistance
  and
• are close enough in time to the request for legal assistance to lead the lawyer to assess the matter as meeting the Commonwealth merits test.

Disability

For the purpose of determining whether a person is a family law priority client, a disability is one of the following:

• a cognitive impairment, such as an intellectual disability or an acquired brain injury
• a serious health condition or physical disability.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Discharge or vary

The action taken by a court to cancel a court order or to change it in some material way, generally upon application made by one of the parties.

Disbursements

Disbursements are expenses (also called out-of-pocket expenses) directly associated with running a legal matter, apart from the lawyer’s fees. Depending on the circumstances, disbursements may include witness fees, court filing and hearing fees, interpreter's fees, and fees for the service of court documents such as subpoenas. For more information, see Disbursements in the Handbook.

Drug or alcohol issues

For the purpose of determining whether a person is a family law priority client, a person is considered to have drug or alcohol issues if they are, or have been in receipt of, professional services to address alcohol and/or drug (including prescription, over the counter and illegal drugs) issues.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Family home

The house or other residence in which one or both of the parties to a relationship have a legal or equitable interest and in which the parties lived as a couple or family at some stage during the relationship.

Family violence

The term family violence has the same meaning as that contained in section 4AB of the Family Law Act 1975 (Cth), ie behaviour towards a family member that is violent, threatening or controlling, or causes the family member to be fearful. Examples of behaviour that may constitute family violence include (but are not limited to):

• assault
• sexual assault or other sexually abusive behaviour
• stalking
• repeated derogatory taunts
• intentionally damaging or destroying property
• intentionally causing death or injury to an animal
• unreasonably denying financial autonomy to the family member
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when they are entirely or predominantly dependent on the person for financial support
• preventing the family member from making or keeping connections with family, friends or culture
• unlawfully depriving the family member of his or her liberty, or doing the same to another member of their family.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Family Dispute Resolution Service (FDRS)

The VLA Family Dispute Resolution Service (FDRS) is Victoria Legal Aid’s in-house, state-wide, legally-assisted family dispute resolution service. If a grant of legal assistance for FDRS is approved for a client, then it applies only in relation to the client’s participation at our Family Dispute Resolution Service. For more information see Victoria Legal Aid Family Dispute Resolution Service.

Family Law Priority Client

A family law priority client is either:

• A person with one or more of the following vulnerabilities:
  • a disability
  • a diagnosed psychiatric or psychological illness
  • cultural and/or language barriers
  • literacy barriers
  • drug and/or alcohol issues
  and this
  • makes the person unable to participate effectively in family dispute resolution at VLA's Family Dispute Resolution Service (FDRS) without legal representation (for an advice and negotiation or FDRS grant)
  or
  • the person is unable to effectively run their own case in court without a lawyer representing them (for a litigation grant)
  or

• a person who:
  • is experiencing homelessness
  or
  • identifies as Aboriginal or Torres Strait Islander
  or
  • has experienced, or is at risk of experiencing family violence.

  For examples that support each criterion in this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.
  

Hague Child Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Child Abduction Convention) is a multilateral treaty in force between Australia and a number of other signatory countries. It provides a lawful process for seeking the return of a child abducted by a parent or guardian from their home country and for parents or guardians to obtain assistance in contacting or gaining access to children overseas.

Hague Child Abduction Convention country

A country which has signed the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Child Abduction Convention) and which Australia has recognised. For a list of member countries, see the Hague Convention countries list.

Homelessness

For the purpose of determining whether a person is a family law priority client, homelessness means either:

• primary homelessness – the circumstances in which a person who does not have conventional accommodation, and may be living on the streets or sleeping in parks, squats, cars, makeshift dwellings or other temporary shelter such as sheds, tents, garages or cabins
  or
• secondary homelessness – the circumstances in which a person moves frequently between various forms of temporary shelter such as emergency accommodation, refuges, hostels, boarding houses, or staying with friends or relatives on a short-term basis.

For further examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Independent children’s lawyer (ICL)

A lawyer appointed by the FCFCOA (Division 1) under s. 68L (2) of the Family Law Act 1975 (Cth) to represent the child's interests in parenting order cases. The independent children’s lawyer (ICL) is not the child’s direct representative and does not act on the child’s instructions.

For more information, see The role of an independent children’s lawyer fact sheet.

Information order (includes Commonwealth information order)

A court order made under s. 67N of the Family Law Act 1975 (Cth) which require the Secretary of a department, or an appropriate authority of a Commonwealth agency (such as Centrelink), to provide the court with information about a child's location. These orders are often needed by the Australian Federal Police to assist them in executing a recovery order. An information order is a type of location order.

Interim orders

Temporary or short-term court orders that are made when the court is not ready or able to make final orders, or until the parties can reach agreement. Interim orders may be required in urgent circumstances.

International child abduction

When a parent or guardian removes a child from the child’s home country to another country (or keeps the child in another country) without the permission of the other parent or guardian, or the authorisation of a court.

Literacy barriers

For the purposes of determining whether a person is a family law priority client, a person experiences literacy barriers if they have difficulty reading and writing in English or using numbers, images, computers, and other common ways of communicating or accessing knowledge.

Literacy barriers can include, or result from, any of the following:

• reading, writing and numeracy skills that are inadequate to manage daily living and employment tasks (functional illiteracy)
• reading disorders such as dyslexia
• learning disorders resulting from conditions such as dysgraphia (difficulties with writing or typing), attention deficit hyperactivity disorder (ADHD), auditory processing disorder (a listening disability) or developmental coordination disorder (a neurological condition).

For further examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Litigation intervention FDRS

A grant of legal assistance to attend Victoria Legal Aid’s Family Dispute Resolution Service (FDRS) while litigation is ongoing where:

• the lawyer thinks that this may lead to the narrowing or resolution of significant issues in dispute
  or
• the court has ordered the parties to participate in family dispute resolution.

Except in situations where the parties have been ordered by a court to attend family dispute resolution, lawyers are required to consider whether a matter is suitable to attend FDRS before requesting an extension of assistance for trial preparation.

Location order

A court order made under s. 67M of the Family Law Act 1975 (Cth) which requires a person or government agency to provide the court with information about a child's location. These orders are often needed by the Australian Federal Police to assist them in executing a recovery order. A Commonwealth information order (or information order) is a type of location order.

Magellan matter

A case listed in the Magellan List of the FCFCOA (Division 1) (a specialised list for cases where allegations of sexual or serious physical abuse of children are raised in post-separation parenting matters). The list provides for a child-focused, coordinated and timely response by the court, taking a case management approach.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

New matter

Victoria Legal Aid will treat the following as a new matter for the purposes of family law costs management:

• recovery order proceedings
• location or information order proceedings
• contravention or enforcement proceedings
• appeals
• a dispute involving any of the following:
  • different parties
  • the same parties about different issues
  • the same parties about the same, or substantially the same issues, where there has been a material change in circumstances.

We will exclude the amount of the new grant from calculations of the cost ceiling for the previous or substantive matters.

A material change in circumstance’, is a change in the circumstances of the parties, the child or the dispute resulting in:

• the existing orders becoming irrelevant or unworkable
  and
• the need for the matter to be determined again.

Parentage

The fact of biological descent of a child from a particular person, most commonly contested by a male party to a dispute. ‘Parentage testing’ refers to testing conducted to confirm or deny biological parentage by DNA analysis.

Parental responsibility

‘Parental responsibility’ in relation to a child has the same meaning as that contained in s. 61B of the Family Law Act 1975 (Cth), and refers to 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.

Presumption of parentage

Court practice that accepts or presumes a person is a parent of a child without the need to produce evidence about the fact. Situations in which the court will accept the presumption is outlined in sections 69P to 69T of the Family Law Act 1975 (Cth).

Recovery order

A court order made under s. 67 of the Family Law Act 1975 (Cth) which authorises and directs the Australian Federal Police to find and return a child to the care of the person named in the order (generally a parent, a person with parental responsibility or a person with parenting orders that allow them to spend time with, or communicate with, the child).

Required section 60I certificate

The general rule is that a person seeking assistance to initiate litigation in parenting disputes must first attempt family dispute resolution at our Family Dispute Resolution Service (FDRS). We will accept some, but not all types of certificates issued under s. 60I(8) of the Family Law Act 1975 (Cth) as sufficient to excuse a person from that FDR requirement.

For the purpose of our guidelines, a ‘required section 60I certificate’ in relation to a dispute is one of the certificates listed in either:

1. Certificates issued by a non-FDRS practitioner

• under s. 60I(8)(b) where the person seeking assistance attended family dispute resolution and all of those attending made a genuine effort to resolve the issue or issues
• under s. 60I(8)(c) where the person seeking assistance attended family dispute resolution and a party other than the person seeking assistance did not make a genuine effort to resolve the issue or issues
• under s. 60I(d) where the parties began attending family dispute resolution but the practitioner deemed it inappropriate to continue.

or

2. Certificates issued by an FDRS practitioner

• under s. 60I(8)(a) where the person seeking assistance did not attend FDRS because the other party or parties refused or failed to attend FDRS
• under s. 60I(8)(aa) where the person seeking assistance did not attend FDRS because the FDRS practitioner considered that it would not be appropriate to conduct the proposed family dispute resolution
• under s. 60I(8)(b) where the person seeking assistance attended FDRS and all of those attending, made a genuine effort to resolve the issue or issues
• under s. 60I(8)(c) where the person seeking legal assistance attended family dispute resolution and a party other than the person seeking assistance did not make a genuine effort to resolve the issue or issues
• under s. 60I(d) where the parties began attending FDRS but the FDRS practitioner deemed it inappropriate to continue.

For more information, see Notes on the key definitions.

Significant change in circumstances

A change in the circumstances of any of the parties to the dispute or to the child which, if it had occurred prior to the making of the previous orders, would have resulted in significantly different orders being made.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Significant to the care, welfare and development of a child

A person who has primary care of a child, or who spends substantial time with a child, such as a grandparent.

For examples that support this definition and further information, see Notes on the key definitions.

Simplified grants process (SGP)

The process by which lawyers on the section 29A practitioner panels and in-house lawyers apply for grants of legal assistance. In Commonwealth family law matters, applications are made via ATLAS. For more information on the SGP, see 10 – Simplified grants assessment process in the Handbook.

Special medical procedures involving a child

Medical treatments or procedures for a child for which a determination by the court is required because:

• the parents are unable to agree about the treatment or procedure
  or
• the treatment or procedure falls outside the scope of parental consent, even if the parents are in agreement.

Special medical procedures which have been determined by the court have included treatment for gender identity dysphoria and disorders of sexual development, heart surgery, sterilisation, ceasing medical treatment, requests to obtain bone marrow or stem cells from a child, and blood transfusions.

Solicitor advocate

A lawyer (also called a solicitor) who is not a barrister but appears in court proceedings as an advocate (a role usually performed by a barrister, particularly in the higher courts).

Spousal maintenance

Financial support paid by one partner in a marriage or de facto relationship to the other partner after the relationship has broken down, in circumstances where the former partner cannot adequately support themselves. An order for spousal maintenance or de facto partner maintenance can be made under s. 74 or s. 90SE of the Family Law Act 1975 (Cth).

Stage of matter limits

In family law costs management, stage of matter limits set out in Fee Table 4 is the maximum amount Victoria Legal Aid is prepared to pay for each stage of the case as it progresses. Lawyers are required to provide an itemised bill of costs for each stage.

Standard grants process

The process by which lawyers on the section 29A practitioner panels and in-house lawyers apply for us to assess applications for grants of legal assistance in certain matters. Applications are submitted via ATLAS and the lawyer takes no part in assessment process. For more information, see 9 – Standard grants assessment process in the Handbook.

Substantial contravention

A substantial contravention of an order (also known as breach of, or non-compliance with an order) is where the person bound by the order has:

• intentionally failed to comply with the order
  or
• made no reasonable attempt to comply with the order
  and
• the contravention happens more than once
  and/or
• has a potential for a serious negative impact on the safety or welfare of the child.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.

Substantial issue in dispute

For the purposes of deciding whether a grant of assistance should be made to a person in a parenting dispute, a ‘substantial issue in dispute’ is an issue that is:

• likely to have a significant impact on the child's safety or welfare
  or
• about who a child is to live with
  or
• about the child's right to spend time with their parents or other people significant to their care, welfare and development.

For examples that support this definition, see Notes on the key definitions.

Urgent matter

An urgent matter in disputes involving children is one where:

1. a child has been removed from, or has not been returned to, the care of a person and a court order is required for the return of the child
   or
2. there is immediate risk of removal of a child from Australia or to a remote geographic region within Australia
   or
3. the child’s safety or welfare is at immediate risk and a court order must be obtained to ensure the safety of the child
   or
4. the safety of the person seeking assistance is at immediate risk and a court order must be obtained to ensure their safety
   or
5. the matter involves current reported allegations, investigations and/or court proceedings relating to the abuse of the child. The Risk Notice filed by the lawyer must set out the allegations that support this
   or
6. a state child protection order (including an interim order) is in place in relation to the child and the state Department of Families, Fairness and Housing (DFFH) has recommended that the parties obtain family law orders relating to the child when the child protection order lapses
   or
7. there are other exceptional circumstances that require urgent legal assistance.

Examples of ‘other exceptional circumstances’ include where a party to the dispute or a child is seriously ill, or where a party to the dispute dies.

The definition of urgent matter applies in applications for assistance made by either the person making allegations or the person who is the subject of allegations.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the key definitions.