The Values of Parliament and the Best Interests of Children - A Response to Prof. Chisholm

Abstract

This article considers whether, in Australian law, the 'best interests of the child' being paramount, are at large, so that the ultimate responsibility of the judge is to decide the case in accordance with whatever he or she considers is best for the child, or whether the determination of what is in the best interests of the child must result from a reasoned application of the considerations that Parliament has provided and in accordance with the priorities that it has stipulated. It is argued that the paramount consideration is to be determined by application of the primary and additional considerations in s.60CC of the Family Law Act, the other statutory considerations, and the objects and principles. A conclusion about a child's best interests cannot be reached independently of those considerations or in a way which displaces the primary considerations enacted by Parliament. The judge's personal view of what is best for the child is not given a legal status higher than the primary considerations. The judicial role requires deference to community values as expressed in the enactments of Parliament even when these differ from the judge's own views and sympathies. This has significant implications for the resolution of relocation cases.

Keywords: Family law, Children, Australia, Paramountcy

JEL Classification: K10, K30, J12