Common Misconceptions in Family Law

Family law can be complex and unfortunately, it’s often misunderstood. Whether you’re separating, co-parenting, or dealing with property issues, it’s important to base your decisions on facts, not assumptions.

Here are some of the most common misconceptions about family law in Australia and the truth behind them.

1. The mother always gets custody

Reality: The Family Law Act 1975 (“the Act”) does not favour mothers over fathers. Instead, the Federal Circuit and Family Court of Australia (“the Court”) considers what is in the best interests of the child, which includes what arrangements would promote the safety of the child and each person who has care of the child, any views expressed by the child, the child’s needs, the capacity of each person to provide for the child’s needs and the benefit to the child of being able to have a relationship with each parent and other people who are significant to the child where it is safe to do so.

2. Children automatically live 50/50 with each parent

Reality: There is no automatic entitlement to equal time. While both parents may share parental responsibility, that doesn’t mean the child will spend equal time with each. Practical arrangements depend on many factors like distance, routines, and the child’s needs.

3. Family law only applies if you’re married

Reality: De facto couples, including same-sex couples, are covered by family law if they’ve lived together for two years, have children, the relationship is or was registered under a prescribed law of a State or Territoy and/or if it is recognised that significant contributions were being made by one person and the failure to issue an order would result in a serious injustice . Parenting, property, and financial matters can be dealt with under the Act regardless of whether you were married or in a de facto relationship.

4. Women always win

Reality: The Act focuses on fairness, not favouring women. The Court considers each case individually, balancing future needs and responsibilities, especially for children. Outcomes depend on circumstances, not just gender.

5. If my ex doesn’t pay child support, I can stop them seeing the kids

Reality: Child support and parenting arrangements are separate legal matters. The other parent not paying child support is not a valid reason to withhold contact. Denying access without a court order or reasonable excuse can work against you in future proceedings.

6. We have to go to court to resolve things

Reality: In most cases, you don’t need to go to court. Many families resolve parenting and property matters through:

Mediation
Family Dispute Resolution
Negotiation with legal help
Consent orders

Court is usually the last resort if all else fails.

7. A verbal agreement is good enough

Reality: While verbal or informal agreements may work short-term, they’re not legally enforceable. To protect yourself, consider formalising agreements through:

Consent Orders
Binding Financial Agreements
Parenting Plans

8. I will lose my rights to the family home if I leave

Reality: Many people think that leaving the family home means giving up any claim to the property. This misconception is based on the belief that possession is nine-tenth of the law. Often, one party may leave to reduce stress or conflict, but this does not affect their entitlement in property settlement.

Final Thoughts

Misunderstanding your legal rights and responsibilities can lead to poor outcomes for you and your children. Contact our office on 02 6206 1300 for legal advice early to avoid costly mistakes and unnecessary conflict.