There are many common misconceptions about family law in Australia. In this article we take a look at five top family myths about family law.

1. All family law disputes go to Court

In family law cases, you must make a genuine effort to resolve disputes through dispute resolution services before you can apply to the court for parenting (section 60I of the Family Law Act 1975) (“the Act”). Consequently, many family law cases are actually settled outside of court. Before initiating legal proceedings, parties will generally try and settle the matter through mediation or negotiation. These methods are more cost-efficient and quicker for parties, and generally involve significantly less emotional stress than going to court.

The Family Court of Australia (FCA) and Federal Circuit Court of Australia (FCCA) can provide dispute resolution services, which will allow both parties a greater control over the process and outcome. An experienced lawyer will be able to assist you and your former partner to reach an agreement without going to court. Once an agreement is reached through dispute resolution, the parties can make a parenting plan or file consent orders with the court for approval.

There are certain circumstances which can exempt parties from the requirement of attending family dispute resolution services. Some of these exemptions can be found under s60I(9) of the Act and include:

• If the court is satisfied there is child abuse or family violence (or a risk of child abuse or family violence)
• The court has reasonable grounds to believe a party has behaved in a way showing serious disregard of their obligations under the order
• One of more of the parties to the proceedings cannot participate effectively in family dispute resolution (e.g. due to incapacity or physical remoteness etc)
• There are urgent circumstances

Of course, if parties fail to reach an agreement outside of court, they do have the option of initiating court proceedings. In the FCA or FCCA, the court will not hear an application for a parenting order unless a certificate from an accredited family dispute practitioner is filed with the application or an exemption is sought and granted.

2. The mother always gets the children

A mother is not automatically entitled to custody of the children under Australian Family Law. Although many family law cases result in the mother having more time with the children than the father, this is not always ordered by a court. Many of these arrangements are reached through mediation between the two parties.

The Act focuses on the rights of children and the responsibilities parents have towards their children, rather than assumed parental rights. It also emphasises the importance of co-operation between parents to ensure the child’s safety and wellbeing.

If a couple cannot agree on parenting arrangements, they may apply for a parenting order. When making a parenting order, the court’s paramount consideration will be whether the order is in the best interests of the child (s 60CA of the Act), as discussed previously in this article.

How to prove the best interests of the children:

The court’s primary considerations are to ensure children are:

• protected from physical or psychological harm and
• can enjoy a meaningful relationship with each of their parents.

Section 60CC of the Act outlines various secondary considerations the court will take when determining what is in the child’s best interests. Some of these considerations include:

• Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give the child’s views
• The nature of the relationship of the child with each of the parents, and other relatives
• The extent to which each parent has fulfilled their parental obligations and participated in spending time and communicating with the child
• The likely effect separation from either parent would have on the child
• Any practical difficulties

3. Property is always divided equally

There is no presumption under Australian law that marital assets must be divided equally between partners. There is no exact mathematical formula regarding property division. ‘Property’ can include assets other than real estate, such as bank accounts, shares and superannuation.

There are many considerations the court looks at when dividing assets, liabilities and financial resources in order to reach a settlement that is just and equitable, as previously discussed in this article. The court will consider both direct and indirect contributions from each party.

Generally, the court adopts a four-step approach (Hickey v Hickey (2003)) in determining property division:

1. Establishing the property pool and its total net value
2. Assessing the direct financial contributions of each party to the marriage or de-facto relationship, indirect financial contributions of each party (e.g. gifts), and non-financial contributions of each party (e.g. homemaking)
3. Whether any special adjustments need to be made for future needs of both parties (e.g. this can include issues such as health problems, age, ability to earn and care for children)
4. What is “just and equitable”

It is important to remember that property division will depend on the unique circumstances of the case. For example, if a party has suffered domestic violence, this may affect their property rights in family law proceedings. Kennon and Kennon (1997) FamCA 27 demonstrated that family violence is a relevant factor in determining a party’s contribution under s 79 of the Act. The party who experienced the domestic violence may be able to obtain a greater share of assets, including property. In conclusion, many factors will affect how property is divided and this will rarely result in each party receiving an equal 50% share of the property.

4. Males come off ‘second best’ financially after divorce

It is a common misconception that men receive “the short end of the stick” in family law matters due to the assumption that their ex-wife or de-facto will be entitled to a larger portion of the marital assets. Coupled with the assumption that women tend to be entitled to the main family residence, as well as more overnight care of the children, it is no wonder that this is a widespread myth. The court does not favour gender, and men have just as many rights as women do in family law matters.

In relation to property settlement matters, the court will divide assets and liabilities according to what is just and equitable. As mentioned previously, there is no exact mathematical formula for the court to divide property between parties. “Just and equitable” does not necessarily mean that a male partner will come out “second best” financially after a divorce or separation. Since both direct and indirect financial contributions, and other non-financial contributions are considered, it will always depend on the unique circumstances of each matter.

Since the court also considers the parties future earning capacity, it is often seen that many men can recover faster financially than women, particularly if the parenting arrangement involves the children spending more time with the ex-wife/de-facto (in particular, women). This would mean the woman would have to apportion more time to childrearing and homemaker duties.

In relation to parenting arrangements, the court’s paramount consideration will be whether the order is in the best interests of the child. Again, this will depend on the unique circumstances of each case as mentioned previously.

5. The two-year rule

This refers to the popular myth that parties who have been living together for 2 years or less, receive no share of the other party’s assets. In Australia, it is exceedingly rare that a spouse’s property entitlement is 0%.

This myth may have evolved due to the assumption that a relationship will be considered a de-facto relationship if the partners have lived together for a set period of time. However, the Act provides a broad meaning of what a de-facto relationship is. Under s4AA of the Act, the court can consider the following circumstances when determining the status of an unmarried couple living together:

• The duration of the relationship
• The nature and extent of their common residence
• Existence of a sexual relationship
• The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple
• The ownership, use and acquisition of their property
• The degree of mutual commitment to a shared life
• The care and support of any children
• The reputation and public aspects of the relationship

Additionally, having regard to all the circumstances of the relationship, the court will need to establish the couple were living together on a genuine domestic basis in accordance with s 4AA(1)(c) of the Act.

In conclusion, the court must still apply the proper property settlement process and consider the unique circumstances of the case in making property settlement orders.

Pannu Lawyers extensively practice in Family Law and regularly appear at Parramatta Federal Circuit Court, Sydney Federal Circuit Court, Parramatta Family Court and Sydney Family Court. We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.