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Fallacies in Family Law

Fallacies in Family Law

Published on September 14, 2022 by Anne Kinnear and Kristie JamesAnne Kinnear and Kristie James

There exist so many myths around family law. Let’s look at dispelling some of them.

“It is called custody” – FALSE

 It is not. Once upon a time phrasing of this kind was used, however it isn’t today and that is because we have moved towards other phrasing such as: ‘care arrangements’, ‘spend time with’ or ‘parenting Orders’.

“The Mum will get the kids” – FALSE

This is a common one and the reason that this myth continues is because, more often than not, it is the Mum who ends up being the primary carer or spending more time with the children. This isn’t because the law favours the Mum. The law doesn’t care if you are Mum or Dad. When it comes to the kids, the paramount consideration is: ‘what is in their best interests?’.

If parents have equal shared parental responsibility, the Court must consider whether equal time with each of them is both in the child or children’s best interest, and whether it is reasonably practical.

If it isn’t, the Court must consider whether substantial and significant time with each parent is best for the children and again, reasonably practical.

Substantial and significative includes both days that fall on weekdays, weekends, holidays and allows the parent to be involved in the children’s daily routine and occasions of significance. ‘Reasonably practical’ is a consideration of things such as how far apart the parents live, whether the care arrangements can be implemented and how it may impact upon the child or children, and the parents’ ability to communicate with each other.

If parents do not have equal shared parental responsibility, the Court will have regard to the best interests of the child in making any parenting Orders.

To determine what is in a child’s best interests, a whole lot of factors are considered by the Court and the list of factors under the Family Law Act [1] is not exhaustive. The matters a Court will consider are open-ended, and it needs to be open-ended to accommodate for the differences in families.

The primary factor to be considered is the children maintaining a meaningful relationship with both parents whilst protecting a child/children from harm, neglect, or violence.

The Court can also consider such factors as the nature of the relationship between the parents and their children, the capacity of each parent to provide for the needs of the children and any wishes the children may express (having regard to the child’s/children’s age and level of understanding).

After considering these factors, and the family before them, it is true that often it is Mum who is found to be the primary attachment figure and who has the capacity, by virtue of her working commitments, to provide the care the children may need.

But that isn’t true of every family, and it certainly isn’t true of families today and that is why the law allows the Court to consider each family individually.

“But we didn’t live together full-time, so we aren’t a de facto couple” – FALSE

The Court’s enquiry is whether having regard to all of the circumstances, did the two people appearing before it have a relationship as a couple, whether or not they lived together in the same residence.

To enliven the jurisdiction of the Court, the relationship has to be one of at least two years, be one which produced a child/children, was one registered or of a kind that the contributions are such that the Court not making an Order would result in an injustice to one party.

In considering the length and nature of the relationship, the enquiry of the Court is also whether there was a place that they lived or spent time together, whether they enjoyed a sexual relationship, whether they mixed finances and/or used and acquired property together and how they presented their relationship to family and others.

Case law tells us that the term ‘living together’ does not necessary mean on a full-time basis.

Provided the right factors exist, this opens up the field for all kinds of relationships (including, for example, extra marital ones) to be considered as ‘de facto relationships’ for the purposes of an application for property settlement.

“Superannuation is not included in the division of assets” – FALSE

Superannuation is an asset and forms part of the pool of property to be divided between partners.

“I can make them pay for my costs” – FALSE

The general rule is that parties involved in family law proceedings each pay their own legal costs.

I have written an article about costs in Family Law and you can find it here, for more information:

Have you heard a myth and want to know whether it is true? We are here to help.

[1] Family Law Act 1975 (Cth), Section 60CC.

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