Is the family law system biased against men?
The short answer is no. The long answer is to read the rest of this article.
On the one hand family law legislation in Western Australia is gender neutral. On the other hand, women do, in my experience, tend to end up with a more time with the children, a higher proportion of the assets and receive more child support than men.
So, if my experience is reflective of the family law system in general, how can I honestly say that the system is not biased against men?
I believe the answer lies, not in the way the Family Court treats people of a particular gender, but rather how they treat people with certain roles in a marriage.
Financial Cases
When it comes to financial cases, the main income earner or “breadwinner” tends ends up with a lower proportion of the parties’ wealth accumulated during the relationship than the primary carer of the children.
Given men are still more likely to be the main breadwinner and women the primary carer, this equates to men tending to receive a lower share of the assets than women. This is not due to the parties’ respective genders but due to their respective roles.
So why does the Family Court often exercise their very wide discretion in this way?
When exercising their discretion the Family Court must make orders that are just and equitable in all the circumstances. In making this assessment, the Family Considers the contributions of the parties, which includes both financial contributions and parenting contributions, and other factors including the parties’ future earning capacities and parental obligations.
When weighing the parties’ respective contributions, the Family Court tends to treat financial contributions by the breadwinner during the relationship as approximately equal to parenting and homemaker contributions of the primary carer during a long relationship.
When it comes to assessing future earning capacity and parental obligations, however, the Family Court may recognise that the main breadwinner has been able to progress his/her career whilst the primary carer has sacrificed his/her career to care for the children. As a result, the primary carer may have a lower future earning capacity than the main breadwinner and the Court could therefore make an adjustment in their favour for that reason. An adjustment can also be made to account for the reduction in income earning capacity that results from the primary carer’s continued parenting obligations.
My experience is that the above considerations often result in women receiving a higher share of the parties’ net assets accumulated during the relationship than men. If the roles were reversed, however, there would be no legal basis for changing the outcome simply because the main breadwinner was a women.
Given each case is decided on its own facts it is important to seek your own legal advice on how the Family Court is likely to exercise its discretion on the facts of your case.
Parenting Cases
When it comes to parenting, the Family Court’s overriding consideration is the best interests of the children. Again, whilst each case is decided on its own facts, my experience is that the Family Court tends to see children’s interests as being best served by remaining in the primary care of the parent who was the primary carer during the relationship.
Given women are still more likley to be the primary carer of the children during the relationship, this equates to women usually having primary care of the children after the relationship.
Again, if the roles were reversed, there would be no legal basis for changing this analysis.
As to child support, where the higher income earner is spending less than 50% of time with the children, they will likely have to pay child support to the other parent, regardless of whether they are the father or mother. Again, in practice, it tends to be the mother that is spending more time with the children.
Conclusion
The Family Court decides each case on its own facts. It is therefore important to seek legal advice on how the court is likely to exercise its discretion on the facts of your case.
Office address: 185 Railway Parade, Maylands WA 6051
Email: terrence@eastandassociates.com.au
Tel: 0403 632 777
