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


Patrick Parkinson


University of Sydney - Faculty of Law


Australian Journal of Family Law, Vol. 21, No. 3, pp. 213-228, 2007
Sydney Law School Research Paper No. 08/50

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.

Number of Pages in PDF File: 16

Keywords: Family law, Children, Australia, Paramountcy

JEL Classification: K10, K30, J12

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Date posted: May 6, 2008  

Suggested Citation

Parkinson, Patrick, The Values of Parliament and the Best Interests of Children - A Response to Prof. Chisholm. Australian Journal of Family Law, Vol. 21, No. 3, pp. 213-228, 2007; Sydney Law School Research Paper No. 08/50. Available at SSRN: http://ssrn.com/abstract=1128025

Contact Information

Patrick Parkinson (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
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