person completing a budget for an application for spousal maintenance

Spousal maintenance and managing
your finances post separation

A family separation will impact your financial well being.  While this time in your life may feel daunting, it is important to take the time to step back and review your finances to ensure that you understand your income and your expenses.

If you find that your expenses are significantly higher than your income, and you believe that your former spouse may have capacity to assist you in covering the gap, you may be eligible to seek spousal maintenance.

How do I assess my finances?

In order to assess your financial circumstances, you should first calculate your income.  You should include all forms of income that you receive, including any Centrelink benefits or child support.

You should then create a list of your outgoings, these outgoings should include any payments you are required to make such as mortgage/rent payments, council levies, school fees, grocery costs, electricity and gas fees, care maintenance and fuel costs, phone and internet bills and insurance costs.  You should also ensure you include an amount for incidentals such as doctors’ visits.

Preparing a document identifying your income and expenses is a bit like preparing a budget.  You need to be able to properly identify these things prior to the Court considering any Application for Spousal Maintenance.

What does the court consider when making an Application for Spousal Maintenance?

If you make an Application for Spousal Maintenance, the Court will consider what your and your former spouses’ ‘reasonable’ weekly expenses are.  The Court will then consider whether the other party has any capacity to provide you with financial support, while continuing to meet their ‘reasonable’ weekly expenses.  The Court can make an Order for spousal maintenance if it deems it appropriate.

Once you have taken the steps to determine your financial position and you are ready to take the next step in the separation process, you should make an appointment to obtain legal advice.  We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or through our online contact form below.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
Two fingers fighting over a dollar coin depicting a marriage separation and superannuation split

Will COVID-19 affect
my superannuation split?

When a couple have separated and wish to sever financial ties, it is not uncommon for property settlement orders to include a superannuation split.  This involves a portion of one party’s superannuation (“the member spouse”) being transferred directly into the other party’s nominated superannuation fund (“the non-member spouse”).

One of the economic consequences of COVID-19 is the falling share market which in turn has led to a reduction in superannuation balances.  In the context of family law and property settlement negotiations, this has meant that there are now circumstances where:-

  1. the member spouse has previously agreed to a superannuation splitting order providing for the non-member spouse to receive a base amount of their superannuation, eg $50,000.00.
  2. the member spouse now has less superannuation than they did at the time the agreement was reached.
  3. the superannuation split would therefore result in the member spouse receiving less of the property pool overall, or could even render the agreement unworkable in circumstances where there are now insufficient funds to effect the split.

What can I do if my superannuation has been affected by COVID-19?

The first thing you must do is obtain an updated superannuation statement to work out exactly how much superannuation you have.

You may wish to change the type of superannuation splitting order to a percentage order.  This would mean that the non-member spouse receives a percentage of your superannuation, rather than a fixed amount.  The benefit of a percentage order is that it will take into account any further drops in superannuation up until the date the order is implemented.  However, it will also include any contributions made by the member spouse to the fund after the agreement is reached.

Please contact our family law team if you would like further information or have concerns about your property settlement orders on 07 4963 2000 or through our online contact form below.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
personal looking through filing cabinet of personal records in family law matter

Personal Records in
Parenting Proceedings

Can my ex obtain my personal records in parenting proceedings?

When a party to court proceedings wants to obtain information about another person, they may be able to issue a subpoena requiring that information to be provided to the court.

What kind of information can be subpoenaed?

Subpoenas can provide for information about any person relevant to the proceedings to be made available, such as:-

  • children;
  • the parents;
  • new partners; and
  • grandparents.

In the context of parenting proceedings, subpoenas are commonly issued to the following places:-

  1. the police – to obtain information about criminal histories and domestic violence;
  2. the Department of Child Safety, Youth and Women – to obtain information about notifications relating to a child the subject of the proceedings;
  3. hospitals and GPs – to obtain information about mental health treatment and injuries to the children;
  4. schools – to obtain information about a child’s academic performance and behaviour.

There are limits to the scope of information that can be requested, and it is important that the subpoena requests only information which would be relevant to the proceedings.

Can I inspect the subpoenaed documents?

Once the documents have been sent to the court, the party who requested them can file a Notice of Request to inspect the subpoenaed documents.  Once leave to inspect has been granted, the parties to the proceedings, or their solicitors, can attend the court house to inspect the subpoenaed documents.  If a Family Report Writer has been appointed, they will generally be permitted to inspect the documents as well.

Generally you will not be permitted to make copies of the documents or remove them from the court house.  In some cases the Court may grant leave for the parties’ solicitors to copy the documents, however the documents must not be provided to anyone else and can only be used in accordance with the Court’s directions.

Can I object to the subpoenaed documents being provided?

There may be circumstances where a party to the proceedings, or the third party receiving the subpoena, wishes to object to the information being provided.  Situations where it may be appropriate to object include:-

  1. the disclosure of the information will place a party to the proceedings or a child at risk of harm – this may be particularly relevant where there has been child abuse or domestic violence;
  2. the documents requested are not relevant to the proceedings – the information should be used to prove or disprove an issue in dispute;
  3. the scope of the information requested is too broad – by way of example, recent counselling records may be relevant while historical records from a person’s childhood are not.

If a party wishes to object to the subpoenaed documents being provided, they must do so in writing and the Court will then decide whether to allow access to the information.

If you would like more information, or assistance in filing or objecting to a subpoena, contact the Family Law team today on (07) 4963 2000 or via on our online contact form below.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
Mum dropping off her daughter to visit her father co-parenting

COVID-19 (Coronavirus)
and Co-Parenting

The COVID-19 pandemic is currently creating a great deal of uncertainty and confusion amongst separated families in Australia.  With children out of school and out of routine, many separated parents are questioning how this pandemic will affect their parenting arrangements.

Disruption to Parenting Arrangements

It is inevitable that there will be some disruption in parenting arrangements for families during this time.  Parents should ensure that they are complying with any orders or parenting agreements currently in place to the best of their ability.  However, now more than ever, is a time for parents to be reasonable and exercise restraint in their communication with the other parent.  Parents should take steps to ensure that they are taking a child focused approach to their parenting arrangements with a focus on limiting the anxiety felt by their children at this time.

Parents should avoid unfairly and unnecessarily restricting their children’s tie with the other parent.  While this pandemic is having a significant impact on the everyday lives of Australians it should not wherever reasonably possible have a significant impact on the time children are spending with their parents.

We recommend that parents consider reaching an agreement in relation to the following:

Changeover

If changeover is currently in a place which is no longer viable due to the closures of schools, public parks and restaurants, parents should consider an alternate option, for example, a grocery store may be more appropriate at this time as they remain open.

Schooling

If parents are encouraged to keep their children home from school, parents should consider how this will be managed under the current care arrangements.

Travel

If children are due to travel these school holidays, parents should consider how this travel should occur.  This is particularly relevant to those children who generally fly between their respective parents homes.  In these circumstances, it may be more appropriate for the travel to occur via car.

Quarantine

If a parent or child becomes sick, then the guidelines imposed by the Australian Government must be followed.  Quarantine should occur where the child is and parents should ensure that they communicate all concerns and information as soon as possible.

Contraventions of court orders should be avoided.  In the event that a contravention occurs, the Court will consider your actions and whether there was a reasonable excuse for contravening a parenting order.

If you require assistance in determining the best approach to managing your parenting arrangement during the current pandemic, we encourage you to make an appointment to obtain legal advice.  Our office remains open and prepared to assist you.  Contact our office to arrange a phone or ZOOM video conference appointment with one of our solicitors should you require assistance or advice.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Graduate
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
women looking at wardrobe deciding what to wear to court

I’m going to court
what should I wear?

Going to Court can be a very stressful and confusing time.  We often have clients who are unsure of what to wear, particularly if our client has not been to Court before.

It is important to present yourself appropriately, and to dress suitably for Court.  There are a few simple guidelines to follow to ensure that you are dressed appropriately.

Dress Conservatively

You should dress conservatively and make sure your clothes fit you, and that you are modestly covered.  If you are wearing a dress or skirt, you should ensure the length is appropriate for Court.  You should not wear shorts, dresses and skirts that are shorter than knee length.  If you do not have knee length attire, we recommend that you wear stockings underneath or choose to wear pants instead.

Present neatly

You should present as well groomed, with tidy hair and clean clothing.  Facial hair should be neat and any tattoos should be covered if possible.

Avoid certain items of clothing

You should avoid wearing jeans, shorts, t-shirts and thongs.  You should also avoid any item of clothing with logos or slogans that could be deemed offensive or inappropriate.

Avoid being too formal

It is not necessary for you to wear a suit and tie, dress suit or a tuxedo.  You should be aiming to be dressed in smart casual or office appropriate attire.

Avoid buying expensive new clothes

While it is important that you dress appropriately, you should not go to the unnecessary expense of purchasing expensive clothing for your Court appearance.  This would not be practical for many clients.

Many clients have appropriate clothing to wear to Court, without needing to purchase new clothes.  For example, you could wear the following:-

  • A simple ironed button down or polo shirt, dress pants and dress shoes; or
  • A dress or skirt and blouse, conservative in length (knee length or longer) and appropriate footwear.

For more information, or if you would like to speak with someone about your pending court matter, please contact our office.

(07) 4963 2000
ONLINE ENQUIRY
Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Graduate
Criminal Law

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Hands holding domestic violence ribbon

Application for Protection Order
filed by the Police?

The police have filed an Application for Protection Order naming me as the Aggrieved – what can I do?

In Queensland, the Police can file an Application for Protection Order (commonly referred to as a DVO) against an individual (the ‘Respondent’), if they believe that the person has committed domestic violence against another person (the ‘Aggrieved’), and that an Order is necessary to protect the Aggrieved from domestic violence occurring in the future.

At times the Aggrieved does not want the Police to file or proceed with the Application.  An Aggrieved may not want the Order for a number of reasons including:-

  • they do not believe that the Respondent has committed domestic violence against them; or
  • they do not believe a Protection Order is necessary to prevent further domestic violence from occurring;
  • they want to remain in a relationship and are worried about the strain associated with the Application on the relationship;
  • they are being pressured by the Respondent or family not to proceed with the Application.

Below are the answers to some commonly asked questions an Aggrieved may have about a Police Application.

Will the Police withdraw the DVO Application if I tell them I don’t want it?

While the Aggrieved’s wishes will be taken into account, the Police can still proceed with an Application for Protection Order, even if the Aggrieved does not want the Order in place.

The Police may choose to proceed in circumstances where they consider it necessary to protect the Aggrieved from further domestic violence occurring in the future.

Can I tell the Magistrate I do not want the DVO in place?

Even though the Police are making the Application, the Aggrieved can still attend Court and appear before the Magistrate.  On the first Court date, the Magistrate will ask the Respondent what they want to do.  The Respondent can:-

  1. Consent to the Order being made;
  2. Consent without admission to the Order being made;
  3. Contest the Application and have the matter set down for Hearing; or
  4. Request an adjournment.

The Aggrieved will then have the opportunity to tell the Magistrate whether they are supportive of the Order being made.

While the Aggrieved’s wishes can be taken into consideration, the Police can still proceed with their Application.

What if I would like a DVO, but I do not want the conditions sought?

The mandatory conditions for a Protection Order are that:-

  1. The Respondent must be of good behaviour towards the Aggrieved; and
  2. The Respondent must not commit acts of domestic violence against the Aggrieved.

In some circumstances the Police may apply for additional conditions to be included on a Protection Order, for example that the Respondent is prohibited from contacting the Aggrieved or from going to the Aggrieved’s home or place of work.

If the Aggrieved wishes to continue to spend time with the Respondent, but is otherwise supportive of the Protection Order being made, the Police can agree to the inclusion of an exemption clause in the Order, for example that the Respondent is prohibited from contacting the Aggrieved except with the written consent of the Aggrieved.

If you would like more information about your rights and obligations, either as a Respondent or an Aggrieved to an Application for Protection Order, contact our office to make an appointment today on 07 4963 2000 or via our online contact form.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Read More
urine test to detect alcohol in family law matter

Alcohol Testing in
family law matters

Alcohol abuse is often a very important issue in a family law matter.  The abuse of alcohol can lead to issues of risk in some circumstances and decrease the capacity to parent effectively.  Where there is evidence of alcohol abuse and potential risk to children the Court may make orders that one or both parties undertake alcohol testing.

How is alcohol abuse tested?

There are three main tests that a person may undertake to determine whether there is any alcohol use or abuse.  While alcohol abuse is difficult to define, it is generally accepted that drinking in excess of 4 to 6 standard drinks per day will evidence chronic alcohol abuse.

  • Urine Test – Ethyl Glucuronide (EtG)

A urine test can be used to evidence whether alcohol has been ingested by a person in the previous 3 to 4 days.  Generally, EtG will not be present if a person has not ingested any alcohol, or if they have ingested minimal alcohol over the 3 to 4 day period.

  • Liver Function Test (LFT)

A liver function test can be used to evidence either alcohol abuse or abstinence.  The liver function test is a blood test.  This test will generally demonstrate excessive alcohol consumption where there are elevated levels of GGT, AST, ALP or ALT enzymes in a person’s blood.

  • Carbohydrate Deficient Transferrin Test (CDT)

A Carbohydrate Deficient Transferrin test can be used to evidence either alcohol abuse or abstinence.  This test is most commonly used in family law matters to evidence a decreasing usage of alcohol.  The CDT test is also a blood test.  The test delivers a result in percentage terms.

If you have been asked to complete alcohol testing in your family law matter, or you think that the other party should undergo alcohol testing, you should make an appointment to obtain legal advice.  We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Graduate
Criminal Law

Read More
Women signing an undertaking

What is an Undertaking
in Family Law?

When parties separate sometimes a person is requested to give an undertaking that they will or will not do something.  Sometimes undertakings are requested before court proceedings are commenced and sometimes they are requested or provided to the Federal Circuit Court or Family Court once court proceedings have commenced.  Undertakings are often requested or provided to deal with issues of risk in parenting or property settlement proceedings.

What is an undertaking?

Entering into an undertaking is like making a promise to the court and will be treated as if it were an order of the court.

How can an undertaking be made?

An undertaking is generally made in writing but on occasion when a matter is in the Federal Circuit Court or Family Court, can be given orally.

Examples of an undertaking a person may enter into include:

  • property settlement proceedings – an undertaking in property settlement proceedings can be made so that a person will not dispose of a particular asset or will not do something to cause the person’s assets to decrease in value or their liabilities to increase; or
  • parenting matters – an undertaking in parenting matters can be made for various reasons including:
    • that they will return a child at a particular time or in accordance with a particular arrangement;
    • that they will not expose children to a particular person or behaviour;
    • that they will supervise the time between a child and a person if there is an allegation that someone is at risk.

What if I fail to comply with an undertaking?

Failure to comply with an undertaking (which is known as a breach of an undertaking) can have serious consequences, and will be treated as if it were a breach of a court order.  The penalty for breach of an undertaking can range from a costs order to a period of imprisonment.  It is therefore important to obtain legal advice prior to entering into an undertaking.

To receive more information, contact one of our local family law experts on 07 4963 2000 or via our online contact form.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Read More
a lady and a man looking after an asian baby

Child Support for
Non-Parent Carers

I provide care for a child but I am not the parent – can I get child support?

The short answer:  It depends who you are and what your relationship is to the child you are caring for.

In order to be considered a non-parent carer a person must be:-

  1. a legal guardian of the child; or
  2. a family member of the child such as, a grandparent, step-parent, sibling, aunt, uncle, niece, nephew or cousin of the child.

Am I eligible to be considered a non-parent carer?

A person may be eligible as a non-parent carer to apply for child support if they meet all of the following conditions:-

  1. they care for a child at least 128 nights or more per year;
  2. they are not in a domestic relationship with either of the child’s parents; and
  3. they do not have joint care with either of the child’s parents.

If a person is eligible to receive child support as a non-parent carer, they must apply to receive child support from both of the child’s parents, unless circumstances arise such as:-

  1. one parent is not a resident of Australia;
  2. one parent has died; or
  3. there are other circumstances that make seeking child support from both parents difficult, i.e. if the identity of one parent is unknown by all parties.

We can help you?

If you think that you may be eligible to apply for a Child Support Assessment as a non-parent carer, you should make an appointment to obtain legal advice.

We encourage you to contact our office to make an appointment to obtain advice on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Clerk
Family Law

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Can the Court change my
Child Support Assessment?

Yes, the Court can change your child support assessment, but only in certain circumstances.

In most cases any amendments to your child support assessment will be considered by the Child Support Agency internally.  However, the Court may make orders in certain circumstances where a person has previously applied to the Child Support Agency directly and they object to their decision.

How do I make an Application to the Court to change my child support assessment?

Before making an Application to the Court, a person must have satisfied all administrative requirements within the Child Support Agency, including (if applicable) an application to the Administrative Appeals Tribunal for a review of an Agency decision.  If after exhausting these options, the person remains unsatisfied with their assessment, they can then file an Application to the Court.

What type of Applications can the Court hear?

The Court has the power to hear the following Applications:-

  1. for a declaration that a person is or is not a parent of a child for the purposes of paying or not paying child support (generally where the paternity of the child is contested);
  2. for recovery of child support paid when a person was not liable to pay child support;
  3. for leave to change an administrative assessment for a period that was over 18 months ago but less than seven years ago;
  4. for child support to be paid in a form other than periodic amounts;
  5. to set aside a binding child support agreement if the agreement was obtained by fraud, undue influence or duress or there are exceptional circumstances;
  6. to set aside a limited child support agreement if there has been a significant change in circumstances of one of the parties or the annual rate of child support is not proper or adequate to support the child;
  7. for the payment of child support (in urgent circumstances);
  8. for a stay order (to suspend or reduce the amount of child support payable while an alternate application or court case is pending);
  9. for adult child maintenance (where a child is over eighteen) or overseas child maintenance orders (where one party is overseas); and
  10. to recover a child support debt (these applications may only be made to the Child Support Registrar or the parent who is owed the child support);

We can help you?

If you think that you may be eligible to apply to the Court in relation to your Child Support Assessment, you should make an appointment to obtain legal advice.  We encourage you to contact our office on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Clerk
Family Law

Other Articles

Spousal maintenance and managing
your finances post separation

Managing your finances post separation may feel daunting but it is important that you assess them before making an Application for Spousal Maintenance.

Will COVID-19 affect
my superannuation split?

One of the economic consequences of COVID-19 is the falling share market which in turn has led to a reduction in superannuation balances. In the context of family law and property settlement negotiations, this has meant that superannuation splitting orders may now be unfair if they are based on a set monetary value.

Personal Records in
Parenting Proceedings

When a party to court proceedings wants to obtain information about another person, they may be able to issue a subpoena requiring that information to be provided to the court.

Read More
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