The council also supports the repeal of the presumption of equal shared parental responsibility
In evidence provided before a parliamentary committee, the Law Council of Australia has cautioned against limiting the court's judicial discretion in making decisions that serve the best interests of a child.
Law Council president Luke Murphy spoke to the Senate Legal and Constitutional Affairs Committee, confirming support for many Family Law Amendment Bill 2023 elements.
Murphy said in his opening statement, "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,"
Furthermore, the Law Council supported the proposed repeal of the presumption of equal shared parental responsibility and associated mandatory considerations of time provisions.
Murphy explained, "Presumptions can unreasonably fetter the court's discretion, 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 child's best interests as the paramount consideration."
Murphy further said that the Law Council is concerned that the presumption and mandatory consideration of equal time in certain circumstances have generated confusion, conflicts, and unfounded expectations for parties, increasing risks for victim-survivors of domestic and family violence, both adults and children. These provisions have resulted in undue burdens on vulnerable parties, who must convince the court to displace the presumption because of family violence.
Murphy also highlighted that members of the Law Council consider 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.
Furthermore, Murphy underscored the necessity of maintaining accessibility to the Family Law Act for the public and acknowledged that matters that come before the court are usually the most complex and challenging, 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 underscored the need for sufficient resources for publicly funded legal services to accommodate the potential impact of the reforms. Murphy emphasised, "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."
