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5 Family Law fallacies that all separated parents should know

5 Family Law fallacies that all separated parents should know

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Family law is an incredibly complex matter, especially so when children are involved. With so many television shows and movies training our understanding of separation and divorce, the existence of numerous myths regarding law is no surprise. On top of dealing with the many emotions one may experience during a separation, parents also have to make important decisions regarding their children during this trying time. As such, it is vital to separate fact from fiction in order to ensure an outcome that is in the best interest of the child(ren).

Today, we have a look at 5 family law fallacies that all separated parents should know.

1. The Child/Children Will Spend Equal Time Living With Both Parents

When it comes to the Family Law Act, it's important to keep in mind that your children have rights, not the parents. To fully understand these concepts, it would be recommended to consult a family law firm such as Oxford Partners family lawyers. As, although this can indeed be the case in some situations, it is important to understand that there is no "set answer" when it comes to how much time a child will spend with either parent. Equal shared parental responsibility was a concept introduced into the Family Law Act 1975 (Cth) to encourage and acknowledge the many benefits children stand to gain through shared parenting.

Many people have the misconception that equal shared parenting is the "default" position in every family law case. While the Courts indeed prioritise children spending significant time with each parent, it is not a 'given' that both parents will share this responsibility on a 50/50 basis. The Courts will consider factors such as work commitments, income, family dynamics and more when making a decision that is in the best interest of the child.

2. A Divorce Application Will Deal With Child Custody

It is important to understand that a divorce application is just that - a divorce. It does not formalise any binding agreements or consent orders relating to children. Similar to how you will need to enter a property settlement to divide your assets (a divorce does not deal with financial matters), you will also be required to come up with an informal parenting plan or apply to the Courts for parental consent orders if you cannot come to a mutual agreement with your ex-spouse.

You can find out more about parenting plans here.

3. I Won't Have To Communicate With My Ex Once My Divorce Is Finalised

Although this can indeed be the case if you don't have children, it is unrealistic for parents to assume that you won't have to communicate with each other once a divorce is finalised. While your romantic relationship may have ended, your co-parenting relationship has only just begun.

Sharing a child is a huge (and incredibly challenging) responsibility that will require healthy and clear communication between you and your former spouse. You will need to work together to make major decisions for your child in the best interest of their physical, mental and emotional needs. Some of these decisions include where your child goes to school, religious tutelage and healthcare they may receive. Additionally, both parents will inevitably have to attend events such as birthdays, graduations, weddings and parent-teacher conferences.

You and your former spouse are going to continue to interact, so it is important to overcome animosity and work on healthy communication for the sake of your child.

4. The Courts Favour Mothers

Although many people believe this, it's simply not true. There is absolutely no legal presumption that a child is better off living with the Mother over the Father. The Courts will decide who the children should live with, not based on gender, but based on the best interests of the child. There are also plenty of fathers (and mothers) who have been granted a higher care percentage of children, and it all depends on the facts of each individual case.

5. My Child Can Choose Where They Want To Live

Although the Courts will always take your child's wants into consideration, there is no set age at which a child can choose who they live with. When considering a child's wishes, the Courts will take certain factors such as their age, understanding of their decision and maturity into account. The Court's main role is to determine an outcome that is in the best interest of a child and a child's wishes are just one of the many factors that are considered when finalising parenting arrangements. The Courts will favour a child's needs over their wants.

To put it simply, the Courts will not base their decision solely on the wishes of a child. Instead, they will take an objective stand on what is determined to be in a child's best interest.


The above are just 5 of the many family law fallacies that all separated parents should know. Do note that the above information is not intended to be a substitute for legal advice. If you have any questions or concerns regarding family law, we urge you to get in touch with an experienced attorney who will be able to expertly navigate you through your separation or divorce.

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