Under s.65E of the Family Law Act 1975 (Cth) the paramount consideration in all parenting decisions is the best interests of the children.
2.
See YoungL., ‘Will Primary Residence Parents be as Free to Move as Custodial Parents Were?’, (1996) 11(3) Australian Family Lawyer31 and YoungL., ‘B v B Family Law Reform Act 1995: Relocating the Rhetoric of Rights’, (1997) 21Melbourne University Law Review722.
3.
Family Law Act 1975 (Cth), s.68F(2).
4.
See for example Re Marion (1992) 175CLR218 where the High Court gave considerable guidance as to the Court's exercise of its best interests discretion to sanction sterilisation procedures; M v M (1988) 166 CLR 69 where the High Court addressed child sexual abuse allegations; and H v W (1995) FLC 92-598 where the Full Family Court considered how to treat children's wishes when applying the best interests principle.
5.
See Family Law Act 1975 (Cth) s.68F.
6.
See above, ref 2.
7.
B and B: Family Law Reform Act 1995 (1997) FLC 92-755, at para 10.64.
8.
It may not be sheer coincidence that the only woman on the High Court speaks so overtly of the discriminatory potential of Family Court decision making in this area. See for example SherryS., ‘Civic Virtue and the Feminine Voice in Constitutional Adjudication’, (1986) 72Virginia Law Review543 and the comments by Madam Justice Bertha Wilson in the Fourth Annual Barbara Betcherman Memorial Lecture, ‘Will Women Judges Make a Difference?’, Osgoode Hall Law School, York University, 8 February, 1990.
9.
Indeed, Kirby J's two judgments provide a good summary of the complex issues involved in relocation cases.
10.
In 1975 Robert Mnookin wrote of the uncertainties created by the indeterminate best interests principle, then known as the welfare principle. See MnookinR., ‘Child Custody Adjudications: Judicial Functions in the Face of Indeterminacy’, (1975) 39(3) Law and Contemporary Problems226.
