Law Council of Australia

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Court best placed to make decisions in best interests of children

11 August 2023

In evidence provided before a Parliamentary Committee today, the Law Council of Australia has cautioned against limiting the discretion of the court to make decisions in the best interests of a child.

Speaking to the Senate Legal and Constitutional Affairs Committee, Law Council of Australia President, Mr Luke Murphy confirmed support for many elements of the Family Law Amendment Bill 2023.

“The Law Council supports reform to Australia’s family law system that simplifies the facilitation of the resolution of parenting disputes, while continuing to place the best interests, safety and wellbeing of any child to a family law proceeding at the centre of the decision-making process,” Mr Murphy said in his opening statement.

“The Law Council also supports the proposed repeal of the presumption of equal shared parental responsibility and the related mandatory consideration of time provisions.

“Presumptions can unreasonably fetter the discretion of the court and provisions around parenting should not prioritise or favour any particular parenting arrangement, as is currently the case. Parental responsibility should be a matter for the court to determine in each case if needed, having regard to the best interests of the child as the paramount consideration.

“The Law Council is concerned that the existing presumption, and mandatory consideration of equal time in certain circumstances, has caused confusion, conflict and unfounded expectations for parties, increasing risks for victim-survivors of domestic and family violence, both adults and children. It has resulted in additional burdens for vulnerable parties in having to persuade the court to displace the presumption because of family violence. It is expected that poor outcomes for some children have been agreed by parents, in the shadow of a mistaken understanding of the law.”

Mr Murphy told Committee members that the Law Council considers that the proposed amendments will enable clients’ legal representatives to focus on what arrangements are appropriate, child-focused and safe in all of their circumstances.

He also highlighted the importance of ensuring that the Family Law Act is accessible to members of the public and in plain English, but still be responsive to the fact that matters that come before the court are usually the most complex and difficult, frequently with a range of risk considerations, increasing the vulnerability of the subject children.

Consequently, the Law Council has made numerous recommendations in its submission to improve the Bill, informed by its Family Law Section and its Constituent Bodies.

In addition, the Law Council raised the need for publicly funded legal services to be adequately resourced to meet any imposts caused by the reforms. “This is critical, noting several measures proposed in the Bill are likely to have significant funding implications for the legal assistance sector, such as the changes to the work of Independent Children’s Lawyers, whose positions are typically funded through legal aid commissions,” Mr Murphy said.

Contact: Kristen Connell, P. 0400 054 227, E. kristen@talkforcemedia.com.au

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