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, Law Clerk, Wallace & Wallace Lawyers

Brittany McIntyre
Law Graduate
Criminal Law

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Application for Protection Order
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If the Police have filed an Application for Protection Order on your behalf you have the right to inform the Court whether you support it or not.

Alcohol Testing in
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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.

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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, Lawyer, Wallace & Wallace Lawyers

Lara Tom
Solicitor
Family Law

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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, Law Clerk, Wallace & Wallace Lawyers

Brittany McIntyre
Law Graduate
Criminal Law

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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, Lawyer, Wallace & Wallace Lawyers

Lara Tom
Solicitor
Family Law

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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, Law Clerk, Wallace & Wallace Lawyers

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, Law Clerk, Wallace & Wallace Lawyers

Brittany McIntyre
Law Clerk
Family Law

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If the Police have filed an Application for Protection Order on your behalf you have the right to inform the Court whether you support it or not.

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.

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Parenting Orders Breached?

Where one parent is not following or has breached the parenting orders made by the Court, the other parent can file a contravention application.

What constitutes a breach of parenting orders?

Under the Family Law Act 1975, unless an order has been varied by consent, a person is taken to have contravened or breached an order if they:-

  1. intentionally failed to comply with an order; or
  2. made no reasonable attempt to comply with the order; or
  3. intentionally prevented compliance with the order by a person who is bound by it; or
  4. aided or abetted a contravention of the order by a person who is bound by it.

It is a requirement that parties participate in family dispute resolution (“mediation”) prior to filing an application with the Court.  Negotiating a resolution by consent is a much cheaper and more efficient outcome than proceeding to Court.  Filing a contravention application should only be a last resort when the parties to the order have been unable to resolve the problem by consent.

When filing your application, it is also necessary to file an affidavit setting out the ways in which the other parent has breached the parenting orders.  You will also need to set out the remedies you are seeking in your application.

What will the Court do, once I file the contravention application?

After hearing the evidence, the Court may find that even though the orders were breached, the parent had a reasonable excuse for doing so, for example to protect the child from harm.  The Court may also find that:-

  1. there was no contravention of the orders;
  2. there was a less serious contravention than the one alleged without a reasonable excuse; or
  3. there was a more serious contravention than the one alleged without a reasonable excuse.

What penalties apply for a breach of parenting orders?

The penalty imposed by the Court will depend on the severity of the breach.  These can include:-

  • a variation to the original court order;
  • an order for make-up time with the child;
  • an order that the parent complete a post-separation parenting program;
  • an order that one parent pay some or all of the other parent’s legal costs;
  • a fine;
  • a period of imprisonment.

What should I do if my parenting order has been breached?

Before commencing legal proceedings it is important to speak to a solicitor about whether a contravention application is the best course of action for you.

Please do not hesitate to contact one of our local family law experts on 07 4963 2000 or via our online contact form if you believe your parenting order has been breached.  We will be more than happy to assist.

Lara Tom, Lawyer, Wallace & Wallace Lawyers

Lara Tom
Solicitor
Family Law

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filed by the Police?

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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.

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Can I change my
Child Support Assessment

Yes – but you need to establish grounds

In short, yes you can.  You can:-

  • apply to change your child support assessment if you pay child support; or
  • apply to change your child support assessment if you receive child support.

However, the Child Support Agency will only change an assessment where a person has satisfied a three step process.  These steps are:-

  1. Is there a ground for changing the Assessment?
  2. Is it just and equitable to change the Assessment?
  3. It is otherwise proper to change the Assessment?

Step 1 – Reasons to Change the Child Support Assessment

The Registrar will consider changing an assessment where it is established that there are special circumstances (grounds or reasons) that should be taken into consideration.  There are ten circumstances that may support a change in assessment as follows:-

  1. The costs of maintaining the child/children are significantly affected by the high cost of enabling the paying parent to spend time with or communicate with the child/children.
  2. The costs of maintaining the child/children are significantly higher due to the child/children’s special needs.
  3. The costs of the child/children’s education, care and training are significantly higher and both parents intended the education, care and training to be at that level prior to separating.
  4. The assessment is not fair due to the child/children’s income, earning capacity or property and financial resources.
  5. The assessment is not fair as the paying parent has provided money, goods or property to the child/children, the receiving parent or caregiver for the specific benefit of the child/children.
  6. The costs of the child/children’s child care costs are significantly higher (applicable where a child is under 12 years of age).
  7. The paying parent or receiving parent’s necessary expenses significantly affect their capacity to support the child/children.
  8. The assessment is not fair because of the income, earning capacity, property or financial resources of either the paying or the receiving parent.
  9. The paying or receiving parent’s capacity to support the child/children is significantly affected by:-
    1. the need for them to support another child or person;
    2. their necessary expenses in supporting another child or person;
    3. their high costs of spending time with or communicating with another child or person (where they are required to spend time and communicate with another child or person).
  10. The paying or receiving parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child/children to whom the child support payments relate.

Each of these reasons can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Step 2 – Is it Just and Equitable?

Once a person has satisfied the Registrar that special circumstances (or grounds) exist in their assessment, the Registrar must then consider whether it is ‘just and equitable’ for the change to be made.  In doing so, the Registrar will generally consider the following:-

  1. The nature of the duty of a parent to maintain the child/children.
  2. The proper needs of the child/children.
  3. The income earning capacity, property and financial resources of the child/children.
  4. The income earning capacity, property and financial resources of both the paying parent and the receiving parent, including the commitments that both parties have to support themselves and any other child/children or person that they are required to support.
  5. The direct and indirect costs incurred by the receiving parent in providing care for the child/children.
  6. Whether any hardship would be caused to the receiving parent or the child if any order to change the assessment is or is not made.
  7. Whether any hardship would be caused to the paying parent or any other child/children that the paying parent supports if an order to change the assessment is or is not made.

Establishing whether it is just and equitable can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Step 3 – The Otherwise Proper Requirement

If the Registrar is satisfied that there are grounds to change the assessment and it is just and equitable to make a change in the assessment the Registrar must then consider whether it is otherwise proper and in accordance with public policy to make the change.  Generally the Registrar will consider:

  1. The nature of the parent’s duty to maintain the child/children.
  2. The effect that change in assessment would have on:-
    1. any entitlement of the child or the receiving parent to an income tested pension, allowance or benefit; or
    2. the rate of any income tested pension, allowance or benefit payable to the child or the receiving parent.

Establishing the grounds whether it is otherwise proper can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Getting the Application right in the first place is crucial to your chances of success.

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, Law Clerk, Wallace & Wallace Lawyers

Brittany McIntyre
Law Clerk
Family Law

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Child Support
– can I get it back?

In limited circumstances, if it arises that a person (the ‘paying parent’) has been paying child support and it becomes evident that there was no basis for this payment because they were not the parent of that child, then they may be able to apply to the Court for a repayment order.

What does the Court consider when I apply for a refund of child support?

In order to apply for a repayment order, the paying parent must satisfy the Court that they are not the parent of the child.  This may be established by way of a DNA paternity test that meets the Court’s requirements.

The Court will then also consider:-

  1. whether the paying or the receiving parent had previous knowledge or concerns about the paternity of the child;
  2. whether there has been any delay in making the claim for repayment after paternity has been established;
  3. the relationship between the paying parent and the child;
  4. evidence in relation to the child’s biological parents; and
  5. the financial circumstances of both the paying parent and the receiving parent.

If the Court is satisfied that payments were made and the receiving parent was not entitled to that child support then the Court may make an order for the amount to be repaid to the paying parent.

Get Advice

If you are considering making an Application to the Court in relation to child support in these circumstances it is important that you obtain legal advice to discuss your options and your potential for success.

We encourage you to contact our office to make an appointment with one of our solicitors on 07 4963 2000 or via our online contact form to obtain advice specific to your situation.

Brittany McIntyre, Law Clerk, Wallace & Wallace Lawyers

Brittany McIntyre
Law Clerk
Family Law

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De facto Relationships
and Wills

Will separating from my de facto partner impact my Will?

Amendments to the Succession Act 1981 on 5 June 2017 mean that the end of a de facto relationship will be treated the same as a divorce when it comes to the effect it will have on a person’s Will.

When a couple in a de facto relationship separate, parts of the deceased’s Will may be revoked if their former partner had been left any gifts under that Will, or where they had been appointed as the executor of the deceased’s estate.

It is therefore very important to review your Will once you become separated from your de facto partner.

Step children of a de facto relationship

Another way in which a de facto relationship is now treated the same as a marriage is in relation to the treatment of step children.

A de facto step child can now make a claim on your estate after you have passed away (known as a Family Provision Application) if they can show that their parent was in a relationship with (or married to) the deceased step parent at the time of either parent’s death.

If the parties were separated at the time of one parent’s death, the step children will not be eligible to make a Family Provision Application.

Contact us on 07 4963 2000 or via our online contact form to make an appointment to update your Will, or if you would like further advice about how your change in circumstances may impact your Will.

Lara Tom Lawyer

Lara Tom
Solicitor
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