Family law is a complex and emotionally charged field. Family law includes legal matters related to property settlement, financial agreements, asset planning and protection, parenting disputes and parentage issues, adoption, child support, surrogacy, and donor agreements.
Over time, various family law myths and misconceptions have emerged surrounding family law, often fuelled by sensationalised media portrayals and anecdotal experiences. These can lead to confusion, anxiety, and misinformed decisions for those navigating the family law system. In this post, New South Lawyers’ Family Lawyers aim to educate by providing accurate and reliable information to address some common family law myths. By dispelling these myths, our family law lawyers seek to give individuals a clearer understanding of their rights and responsibilities in family law matters, helping them make more informed decisions during challenging times.
Common Family Law Myths Debunked
There are many popular, albeit false, beliefs regarding the family law system in Australia, including common divorce law myths that often mislead separating couples. Among them are misconceptions that family law courts in Australia will always:
- Favour mothers over fathers in family law parenting disputes, a belief commonly associated with custody myths.
- Grant exclusive possession and occupation of the family home to wives and not husbands following separation;
- Grant the parent with sole parental responsibility unlimited rights in relation to the child; and
- Allow the parent with sole parental responsibility to travel with the child to a Hague Convention country.
Examples of Family Law Myths Debunked in a Recent Australian Case
The recent Australian case of Norris & Ishkawa provides several examples of common family law myths being challenged. Below are some key aspects of the facts and interim decisions that contradicted these common assumptions.
Husband Has Sole Parental Responsibility of the Children
The Honourable Judge made interim orders in 2021 for:
- The children are to live with the father in the family home;
- The father has primary care and sole parental responsibility for the children; and
- The mother is to spend very limited time with the children due to allegations of risk to the children.
Husband Has Exclusive Possession of the Family Home
The Court also ordered that the husband have sole possession and exclusive occupation of the family home.
Husband’s Application to Travel to a Hague Convention Country Refused
At the most recent interim hearing in August 2023, the Court refused to make an order permitting the father to travel with the children to a Hague Convention country.
How Is This Possible?
The Family Law Act, which is currently undergoing reforms, provides that when making any parenting order in relation to a child, the Court must regard the best interests of the child as paramount when making child custody decisions. In determining the best interests of a child, the Court is required to primarily consider the benefit to the child of having a meaningful relationship with both parents, provided the child is not exposed to physical or psychological harm arising from abuse, neglect, or family violence.
This means that the rights of both parents are secondary to the best interests of the child. In this case, each party raised allegations of family violence and psychological harm. Although the Court was unable to make definitive findings on the evidence at the interim stage, it appropriately noted the allegations and exercised caution when making interim orders.
New South Lawyers’ communications are intended to provide commentary and general information only. This content should not be relied upon as legal advice. Individuals should seek formal legal advice for matters arising from this communication.
To find out more, speak with a member of the New South Lawyers Family Law Team today.