Family Law Misconceptions
Important Information before you Start
The dynamics of every family are unique, and as such, so should the family law advice you receive be. Hills Family Law Centre offer Initial Consultations, which are a ~60-90 minute session with a senior Family Lawyer, wherein we can take the time to understand the factors unique to your family, and provide you with tailored and bespoke advice on your matter.
The below content addresses common misconceptions in broad terms, but does not take into account the factors unique to your matter, and as such should be treated as broad, generalised information, and not specific Family Law advice.
Why are there so many misconceptions in Family Law?
The circumstances surrounding Family Law create a perfect storm for misinformation to spread. Not only is it a highly complex area of law, but decisions are made based on highly sensitive and personal facts that often people may be unwilling to share in their entirety.
A decision or outcome that is widely to be seen as grossly injust, unfair or unbelievable, is generally because it is….. based on the information you have available to you!
In these circumstances, there is a very high probably that you don’t have all of the facts that were available in order for this decision to have been made, and those facts are likely highly relevant, and likely to provide context as to why a certain decision was made or outcome was arrived at.
This isn’t because people are actively looking to mislead others, but more because these factors are likely highly personal and sensitive, and – entirely reasonably – deserve to be kept private.
The problem is, when an outcome is shared in isolation, without the benefit of the relevant facts behind it, it can cause people to assume this outcome may apply to their own circumstances, which is, at best, highly misleading, at worst, very damaging.
Acheiving a "Fair and Equitable" Outcome
The Family Law Act and Family Law System certainly isn’t perfect, but at it’s core is built around trying to ensure a “Fair and Equitable” outcome for all participants.
The issue here is that in the highly emotive space of Family Law, “Fair” or “Equitable” are hard things to find common agreement on, and this can certainly be subjective.
Post-Separation, the reality is that assets will be divided, living expenses are duplicated and parents time with their children may be reduced – including sharing of significant events.
Our role as Family Lawyers is to assist out clients in navigating this to achieve an outcome that is in the best interests of their family, and what is seen as “Fair and Equitable” not just under the Family Law Act, but to the individuals involved as well.
Misconception 1 - Assets are split 50/50
Whilst for a significant relationship this is an OK starting point, there are many reasons as to why adjustments would be made to end up with an unequal division.
Factors considered would include;
Financial Contributions (salary/wages, inheritances, savings prior to the relationship),
Non-Financial Contributions (homemaker and/or parenting contributions),
Future Earning Potential (if one party has the ability to earn significant more income in the future, an adjustment may be made to factor this in)
Future Needs (if one party has greater financial needs into the future)
Parenting Arrangements
The above are an example of common reasons as to why a property division won’t be 50/50, and may instead be adjusted (say 40/60 or 70/30).
Misconception 2 - Assets are not "Mine"
Whether it’s not being on title for a property, not being a shareholder of a small business or not having any other asset in joint names, this is relatively meaningless in Family Law.
Family Law will look at all assets and liabilities, irrespective of who holds legal ownership, and generally all of these assets are considered to be within the total pool considered for division in Family Law.
There are certain fringe exceptions, but largely the starting point will always include all assets owned by either party, and then move on to looking at the factors listed above for what a division may look like.
Misconception 3 - "At Fault"
Family Law is a no-fault jurisdiction, meaning that allegations of infidelity or other conduct that led to the breakdown of a relationship are not, by default, meaningful factors when it comes to Family Law proceedings.
There are certain areas where these factors may come into play – for example if the conduct presents risks to any party, or where it may impact the credibility of one party in giving evidence, but the notion that the person who caused the relationship to end will in some way be penalised for their conduct is largely not true.
Misconception 4 - Children
The default position under the Family Law Act is that children should have a meaningful relationship with both parents.
In a situation where the child is not overly dependent on one parent (e.g. an infant or a child with significant special needs) and there are no signficant risk factors presented by one parent that would impact their ability to ensure the safety of a child, the default position is to ultimately achieve a largely equal quantity of time that a child will spend with each parent. This may be a “week about” arrangement, or something else that is able to provide the child with stability, and ensure a largely equal relationship with each parent.
Where there may be factors that would prevent this from occuring in the short term, there will always be attempts to put steps in place to develop a pathway to a meaningful relationship with each parent – such as an incremental increase in time as an infant grows up, or increases in time subject to risk factors (such as alcohol abuse, drug use, etc) being reduced.
The primary consideration is of course the safety of children, and then following that is to ensure parents have equal opportunity to form a meaningful relationship with a child.
Misconception 5 - Attending Court
The vast majority of Family Law matters do not proceed to court and are instead settled by consent or agreement.
This can either be a result of a client attending an Initial Consultation with a proposal already agreed by both parties, by a result of us negotiating on your behalf with the other party or their legal representative, by negotiating an outcome during a mediation or by coming to an agreement through other non-Court based avenues.
Matters enter the Court system when all options for a consent-based resolution of the matter have failed, and then the Court will typically run each matter through a defined ‘Pathway’ wherein settling the matter by consent is encouraged. It is very uncommon for a matter to proceed to a Final Hearing to be decided by a Judge.
The jurisdiction for Family Law matters is in the Federal Circuit and Family Court of Australia, and typically a Court matter we are involved in would be held at Parramatta or Sydney CBD. <clunky – fix me>
Misconception 6 - De Facto Relationships
Under the Family Law Act, De Facto relationships are treated no differently to Marriages, but this doesn’t necessarily tell the full story.
When the above statement is made about a long term de facto relationship, where there may be children involved as well as significant and long term intermingling of money and assets, this makes perfect sense.
When it is a short term de facto relationship, without children, it becomes a little more important to point out that a short term relationship – whether it is de facto or a marriage – is going to give more weight to factors such as assets each party held at the commencement of the relationship, and to contributions made during the relationship.
As such, it is likely that a “fair and equitable” settlement is more likely to more closely reflect what each party had at the commencement of the relationship than it is to represent an equalisation of assets.
Why Hills Family Law Centre?
Led by an Accredited Specialist in Family Law, our team practice exclusively in Family Law and understand the unique challenges presented in this complex and emotive area. We work collaboratively with all parties to achieve positive outcomes for our clients as quickly and cost effectively as possible and have success in resolving the majority of our matters without requiring expensive, time consuming and invasive litigation.
We also recognise that in some cases litigation may be inevitable and should this be the case we work pragmatically to prepare your matter for Court, will continuing to try and resolve the matter in parallel.
Our clients are at the heart at what we do, and at all times our team take the time to guide you, and ensure you are fully understanding of your options, expected timeframes, costs and other key factors. We will approach your matter with professionalism, sensitivity and with an overriding goal to resolving your matter amicably, cost-effectively and expeditiously.
Practicing exclusively in Family Law, we can also assist you with
Divorce Applications
If your marriage has broken down, we can provide you with detailed and easy to understand advice about how to formally end your marriage by Divorce Order, whether that be by way of a Joint or Sole Application for Divorce being made to the Court.
Consent Orders
In circumstances where parties are able to reach an agreement in relation to parenting and/or property settlement matters, we can assist in having the terms of your agreement formalised by drafting and filing the Application for Consent Orders, together with the proposed Consent Orders with the Court.
Spousal Maintenance
Applications for urgent or interim Spousal Maintenance may be made in appropriate circumstances where a party is in need of financial assistance. We can provide advice in relation to the different applications which can be made in this regard, what you may be entitled to receive by way of maintenance from your former partner and the relevant requirements for such applications to be successful.
Court Representation
Whilst we will always work towards achieving outcomes for our clients without having to go to Court, in circumstances where such a course is unavoidable, rest assured our team of Solicitors are experienced advocates, familiar with the procedures and rules in both the Federal Circuit Court of Australia and Family Court of Australia.
Child Support
Following the breakdown of a relationship, we understand the importance of ensuring appropriate arrangements are made for the financial support of children as a matter of priority. Whether parties are able to come to an agreement between themselves in relation to the payment of child support which may then be formalised by way of a Binding Child Support Agreement, or otherwise an assessment is required by the Child Support Agency, we can assist by providing information and advice in regards to the most appropriate arrangements in your situation.
Mediation & Settlement Conferences
In appropriate circumstances, we encourage our clients to make a genuine attempt to resolve any outstanding family law issues by way of negotiated settlement. We can offer advice in relation to the most appropriate settlement options in the circumstances of your matter, including Family Dispute Resolution Services, Mediation (involving only the parties or otherwise legally assisted Mediation), and Roundtable Conferences.
Domestic / Family Violence
It is an unfortunate reality that domestic and family violence is a feature of many relationships, including the physical, emotional, psychological, verbal and financial abuse of a party, and often this occurs in the presence of children. There are no circumstances in which this behaviour is appropriate. If you are a victim of domestic and/or family violence, we urge you to seek advice so that appropriate actions are taken to ensure your immediate safety and protection and so that we may assist you in regards to the resolution of any outstanding property and/or parenting matters in a safe and expeditious manner. We can also provide advice to parties who have been falsely accused of perpetrating acts of domestic and/or family violence.
Wills
Whilst we endeavour to keep all matters out of court, sometimes Court Representation is necessary. The experienced team at HFLC can assist in both Federal Circuit Court and Family Law Court appearances.