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Famil Law Myths and Reality

Over time, many myths have grown around Family Law

We all know someone who has been involved in family disputes and they all have a horror story to tell – many get much better in the telling.

The particular laws that apply in this area are updated and changed quite frequently and this can lead to misunderstandings about what happens when couples separate. Recent changes – particularly around de facto relationships and arrangements for children – have added to these misunderstandings.

Media reports often focus on sensationalist aspects of Family Law cases (‘Mistress claims assets’, ‘Family Court awards father equal time’, ‘Mother forced to live in remote town to see children’), which can create even further misconceptions in the public mind.

Below are some examples of common misunderstandings and the reality.

  • Fault at separation

    If the separation is one person’s ‘fault’ – for example, because they had an affair or abandoned the family – they will be punished and the other person may get more of the property or more time with the children.

    It doesn’t work that way, as unfair as it may seem. Family Law in Australia looks primarily to the future – what will you need in the future (financially) and what arrangements can be made for your children that are in their best interests. Although you may be hurt by the actions of your ex, there are no legal provisions to ‘punish’ them by giving you more in the division of money or time with children.

    Family Law is a ‘no fault’ jurisdiction and questions of morality do not come into decisions.

  • Custody of pets

    We can get orders in court to both have time (or ‘share custody’ in the American phrasing) with our dog/cat/goldfish.

    ‘Fluffy’ may be part of your family but the law sees pets as property, not as people. After all, Fluffy can’t say who she wants to live with anyway!

    Property is divided between the two people involved – legally, your pet will belong to one or the other of you after separation, and orders will not be made for you to ‘share time’ with the pet.

    Of course, you can come to a non-legal arrangement between yourselves about time sharing with your pet and carry it out yourselves. However, if there is an argument between you about time with the pet, the only way a court can solve it is by allocating the pet to one of you, solely as part of the property division.

  • Listening to kids

    The kids have said they only want to live with me and they don’t want to see their Dad/Mum. The Court has to listen to them, right?

    This depends on the age of your children. If they are not teenagers, other considerations will probably carry more weight. If the children are older and show maturity, the Court will give more weight to their opinions. Especially as children reach the age of 15 or 16, it is difficult to force them to spend time with a parent they do not want to spend time with.

    The Family Courts are very good at assessing whether an opinion is a child’s own opinion or something that their parent has talked them into saying. If you try to influence your children’s views and this becomes known, the Judge will not think much of your abilities as a parent. If there is any question about what your children really think and why, the Court may have a child expert speak to them alone, find out what they think and report back to the Court.

  • It’s against Dads

    Family Law is prejudiced against Dads. Mum will automatically get more time with the children if the case goes to court.

    This is not true, however there are reasons why it may seem to be.

    Studies have shown that young children (under the age of five or six) need the stability of living consistently with one parent – sharing that involves different evenings in different places is not necessarily in their best interests. However, it is good for children to have frequent time during the day with the other parent to maintain their relationship.

    Because of the physical bond a mother has with a child when it is born, she will usually be the parent that a very young child stays with.

    When they are at school age, children cope much better with time sharing between parents and more equal time-sharing arrangements might be appropriate.

    It may seem unfair that one parent gets more time with younger children than the other, but don’t forget – the law prioritises children’s best interests over parents’ best interests.

  • The best position on separation

    Now that we’re separated, my ex will be able to take all my money because the kids mostly live with her.

    OR

    Now that we’re separated, my ex will get to keep all the money because he’s the breadwinner and I won’t be able to support the kids.

    Neither of these is true.

    Nobody will get to keep “all the money” – not you and not your ex either. Instead, the law tries to ensure that both are financially supported, with the amount and method of support depending on the circumstances in each case.

    Provision for the kids through Child Support can be sorted out in a number of ways. If you are worried that your partner used to support you financially and now you don’t have any source of income, you may want to investigate applying for spousal maintenance (even if you were not married).

  • Allegations of abuse

    If a mother makes allegations of abuse against a father, she will be believed and he will be punished by not being allowed to see his children.

    The Family Courts are very good at assessing the difference between real and false allegations of abuse.

    The Court will look at what is said by witnesses in court, as well as evidence such as police records, doctors’ and hospital records, reports from schools and from the State Government department in charge of health and welfare.

    People who make up allegations of abuse are looked on very critically by the Court. It may even order you to pay some or all of the costs of the other person.

    Even if allegations of abuse are found to be true, they don’t necessarily mean that the abusive parent will be prevented from seeing their children, although visits may be supervised by an independent person to make sure nothing goes wrong.

    The law was changed in 2006 to give fathers the right to have equal time with their children.

    The Family Law Act presumes that parents should have “equal shared parental responsibility” for their children but this does not mean that they should also have the right to enjoy equal time with their children.

    The Court is now required to consider whether “substantial and significant care” by a parent is appropriate, but decisions will always be based on what is considered in the best interests of the children.

  • Kids mean more assets

    Whoever gets the kids after separation gets at least 60 per cent of the assets.

    Family Law is a discretionary jurisdiction – meaning that the courts have wide powers to make Orders. Many facts are taken into account to determine how assets will be distributed. Parties’ contributions and their perceived needs will be assessed. Care arrangements for the children is just one of many matters that will be considered. There are no requirements in Family Law for fixed percentage distributions in any circumstances.

  • Natural parents have exclusive rights

    Only the natural parents of a child may participate in that child’s care and development.

    Family Law does not prevent people other than natural birth parents from seeking Court orders that would enable them to care for a child.

    Grandparents regularly make such claims and are, in many cases, successful in having their grandchildren placed in their care by the Family Court.

    Rather than rely on popular but wildly inaccurate myths, you should seek legal advice about your rights and responsibilities, your entitlements and your obligations at Family Law. This is the case whether you are separated after a marriage or your de facto relationship has broken down, whether you are a parent, a grandparent or, simply, a person interested in a child’s welfare and development.