Debunking Family Law Myths

There are plenty of myths about family law. Some might be true, some might be exaggerations and some might be flat out wrong. When the news reports a horrific circumstance surrounding Domestic or Family Violence, the internet is flooded with comments and opinions about the bias or failing of the Family Law system and Court.

Let’s talk about some of the most important facts and dispel the worst myths.  

FACT: The Best Interests of the Child are the Paramount consideration

In parenting matters, the Court must make orders that are in the best interests of the child. There are two specific considerations for determining a child’s best interests which are described in the legislation as “primary” considerations:

  1. First, that the child have a meaningful relationship with both parents; and
  2. Second, that the child be protected from harm.

(And the need to protect the child from harm trumps the meaningful relationship if there is a conflict between the two limbs).

There are other considerations (described in the legislation as “additional considerations”) relevant to determining a child’s best interests. These include:

  • each of the parents’ capacity to care for the child,
  • the nature of their relationship,
  • past behaviour towards each parent’s responsibilities as a parent,
  • the history of care and maintenance,
  • existing relationships,
  • special needs of the child,
  • their age and maturity, cultural background and so on.

The parties in a dispute about a child sometimes are the parents, grandparents, step-parents or other adults.

FACT: The Court wants to make sure the child has a Positive and Meaningful Relationship with both parents

The best interests of the child are balanced with ensuring that the child has a positive and meaningful relationship with both parents. The Court and parties negotiating out of Court should always be considerate of options that are available and appropriate to allow the child to spend time with both parents in a positive manner. Sometimes that will be in the form of genuine 50/50 shared care between the parties, but sometimes it comes in the form of telephone calls, school holiday time, video chats, supervised visits or texting.

Both parties should strive to ensure that the child has the best relationship possible and appropriate with each parent and understand that it is rare that the Court would consider it the right decision for a child to have absolutely no contact with a parent who was willing and able. As said above, of course the extent of the relationship a child has with their parents is always guided by the best interest of the child and their safety and wellbeing.

MYTH: Family Law Favours the Mother

This is one of the most common myths about Family Law and it is simply, unequivocally not true. The Family Law legislation, which applies to the entirety of Australia, clearly states that as the starting point for all Family Law matters, the parties (if trying to reach an agreement) or the Court (if trying to reach a decision) must begin at a 50/50 split. This is called in the legislation a” rebuttable presumption”. This presumption of equality applies to time with the child, parenting responsibility for the child and bearing the burden of the cost of the child.

However, ultimately, the paramount consideration is the best interest of the child which often trumps the presumption of equality. Practically, all families are different and the dynamic of equal shared care between parents is sometimes not appropriate/manageable. A few of the possible reasons for this are:

  • One parent works long hours (very early starts, very late nights, all weekend) and it would be more appropriate for the child to live primarily with the other parent due to practical reasons
  • The child is very young (1) and, therefore, there are still physical bonds with the mother like breastfeeding which mean that practically it would be impossible for the child to be away from the mother for long periods until the child gets older
  • One parent wants to move/has moved a long way away (including maybe overseas) from the other parent
  • The Court will always do what is in the best interest of the child and therefore will consider carefully making a 50/50 arrangement if it uproots or disrupts the child too much.
  • There are concerns about the child’s welfare if in the care of a parent and adjustments to the time they spend with that parent is appropriate  

The above are just a few examples of practical reasons why 50/50 just couldn’t work between some families. As spoken about above, the best interests of the child are always the primary focus of the Court, and decisions that are made by the Court about the division of time between parents will always be guided by that principle.

As a general proposition, for an arrangement of equal care to work well, the parties should agree on an overall arrangement whereby:

  • Each parent will respect the other parent;
  • Each parent will respect the other parent’s role as a parent;
  • The parents are prepared to be flexible;
  • The parents are prepared to communicate
  • There is no hostility between the parents

This Article is part of the series Debunking Family Law Myths. Visit our website again for further information soon. If you have a particular family law question you want clarified as a fact or myth, please email me at gbriggs@elringtons.com.au