Login
Court should not be limited in making decisions for children, LCA warns
The court should have the discretion to make decisions in the best interests of a child, according to evidence provided before a parliamentary committee recently.
Lauren Croft
As part of recent consultation for the Family Law Amendment Bill 2023, the Law Council of Australia cautioned against limiting the discretion of the court to make decisions in the best interests of a child.
“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.”
However, Mr Murphy argued that the court should have the final say over parental responsibility – as, in some cases, poor choices for children have been made mistakenly by their parents.
“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,” he added.
“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.”
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.
Mr Murphy also highlighted the importance of ensuring that the Family Law Act is accessible to members of the public and in plain English, but that the act must 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 and 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 added.
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
