Family Law

Myths of Family Law

ALL Family Law Disputes "End up in Court"

NOT TRUE - A few do, but the vast majority do not.

In Australia, there are over 50,000 divorces each year, and in the vicinity of another 8,000 de facto couple separations each year. However, less than 5% use the courts to make decisions about their financial and personal lives. That is, more than 95% of Australian families who separate or divorce reach an agreement or abandon any claims ("lump it"). Television and movies unfortunately give some people a false image of the normal courtroom procedure instead the truth of the far less glamorous work of negotiating within conflicted families.

Mothers Always "Get" the Children

For more than twenty years, the Family Court and the High Court has stated consistently that there is no legal presumption that children should be physically cared for by their mothers. However, there are many sociological reasons in Australia why the majority of children will continue to spend more time with their mothers than with their fathers.

The commonly held misconception, that the judges of the Family Court are biased in favour of mothers when there is a dispute over a child, is at best misguided. Whilst it is true often greater percentage of care is taken by the mother it is not for the reasons that is usually implied.

Mothers in Australia tend to be responsible for more overnight care of children each year than fathers do, due to many factors, these include:

  • During a marriage, children tend to spend more time with mothers than with fathers. These pre-separation patterns tend to continue post-separation.
  • Women tend to have more part-time jobs than males. Accordingly, they are more "available" to care for children who are sick or on school holidays.
  • Conversely, more fathers have full-time employment than do mothers. It is usually foolish for a father to reduce his employment (or threaten to do so) in order to "look after" his children, when the family needs stable income

Reaching an agreement

The vast majority of separating couples are able to reach agreement in relation to the arrangements for their children, and financial issues. Even in cases where one party has found it necessary to commence proceedings in Court, approximately 94% of cases are finalised by an agreement being reached. There are many services available to assist parties in reaching an agrement.

Before commencing court proceedings (other than in certain circumstances, such as urgency) parties are required to make a genuine effort to resolve matters by agreement. The Family Court has endorsed "pre-action procedures", setting out the steps which parties are expected to take to try and resolve matters by agreement, and without commencing court proceedings.

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