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Young, Lisa --- "U and U: Reflections on the High Court and family law" [2003] AltLawJl 16; (2003) 28(2) Alternative Law Journal 78

U and U

Lisa Young[*]

A challenge to the High Court's approach to child protection.

Family law is an important issue for many Australians and relocation is an important issue within family law. So-called 'relocation' cases are those where a dispute occurs when a parent's wish to move impacts on parenting regimes. Anyone working in the field of family law recognises that serious issues are at stake here. How do we best balance children's right to contact with their parents, against a parent's right to choose where they live? These are matters of fundamental importance to many Australians. Not surprisingly, the jurisprudence in this area has shown that these cases are not easy (from a legal point of view) for decision makers. Such decisions go to the very core of family law decision making and require sober thought on how the best interests principle[1] should be applied.

Most family law litigants cannot afford to take matters to the High Court and pro bono representation is difficult to secure. Yet, the decisions made in the Family Court will have profound effects on the families involved and widespread effects on our community. Therefore, it is vital when a matter of such national import does finally reach our highest court of appeal that the decision makers involved engage deeply with the issues raised.

In 1999 and 2002 the High Court took the opportunity of considering the proper legal approach to family law relocation cases in AMS v AIF; AIF v AMS (1999) FLC 92-852 (AMS) and U and U [2002] HCA 36; (2002) FLC 93-112. This article does not critique the outcomes in those cases but rather how the High Court has approached this area and what this might say about its engagement with family law. It is argued that the majority of the High Court have failed to confront the complex legal issues that arise in such cases. Instead, the broad discretion granted decision makers in family law has been relied on to justify the absence of consideration of fundamental matters of principle. Moreover, unlike other areas the High Court has considered, the majority has not taken account of developed jurisprudence in other jurisdictions. It is concluded that this does not auger well for family law litigants hoping to find clear guidance in this complex area of law.

The first High Court relocation case: AMS

This case challenged a long-standing practice in the Family Court for judges to approach relocation cases by initially ignoring the intended move, and asking firstly who should be primary caregiver. If the preferred caregiver was the parent intending to move, the Court would proceed to consider whether they should be permitted to leave. Gaining such permission was difficult in the absence of a 'compelling reason' for the move.[2] In AMS, the mother argued that this approach (which was clearly adopted by the trial judge in her case) erroneously applied a de facto requirement that she demonstrate a 'compelling reason' for her proposed move. The mother argued the test should simply be whether the child's best interests lay in living with her, in Darwin, or with the father, in Perth.

Relocation cases like AMS raise fundamental questions about the application of the best interests principle. The Family Law Act 1975 (Cth) (the Act) does not explain how to approach the exercise of this broad discretion (except for a list of mandatory considerations).[3]The High Court and Family Court, however, have provided clear guidance on the process of exercising this discretion,[4] to ensure the discretion is exercised fairly.

The leading judgment of Kirby J in AMS confronts the specific problems raised by relocation cases. In particular, Kirby J acknowledged that such cases require courts to balance conflicting interests (at para 112). The (nine) general legal propositions that he found can be drawn from over 30 years jurisprudence in such cases, both at home and overseas (at para 141). Kirby J's discussion highlights issues that need to be addressed to ensure fairness when balancing these conflicting interests such as:

• the disproportionate effects of such decisions on women and parents born overseas (at para 140);

• the implications of an approach that requires parents to show 'compelling reasons' for a move (at paras 191-2);

• the nature of the best interests principle (at para 193); and

• how failing to properly address a party's proposal can lead the Court to adopt an approach that unfairly advantages a party to the proceedings (at para 194).

Kirby J concluded that the trial judge had erred by requiring 'compelling reasons' for the proposed move and upheld the mother's appeal.

Hayne and Gaudron JJ also addressed how process can affect the outcome of a case. Both emphasised the importance of considering the extent of the Court's power to make parenting orders. Raising this issue leads inexorably to a discussion of the issues the Court is permitted to address. Only by focusing clearly on the scope of the legal issues raised, could the Court put the evidence presented in its proper context. For example, if the question at issue is 'with whom shall the child live', evidence of a parent's reasons for moving is only relevant if it sheds some light on the consequences of the child living with one parent in one location, as opposed to the other parent in a different location. Hayne J did not extend his discussion beyond the point at hand, but his legal analysis led him to conclude that the trial judge adopted an erroneous approach. Gaudron J went on to consider the correct approach to relocation cases in more detail.

Gaudron J looked beyond the precise question of 'compelling reasons' and considered an issue she saw as fundamental to relocation cases-the general approach that the deciding judge takes to the alternative proposals put by the parties. She said the Court must evaluate 'the competing claims of each parent and the arrangements that each could make' (at para 94). If one breaks the question down to ask firstly who should have residence, and then, if it is the relocating parent, whether they should be allowed to move, the real issue is obscured. The question the Act demands is different-should the child live with the relocating parent in their proposed location or with the other parent, in their proposed location? According to Gaudron J, this necessitates a detailed evaluation of the parties' competing proposals.

The remaining members of the majority, Gleeson CJ, McHugh and Gummow JJ, delivered a joint judgment. They expressed in one brief paragraph their concurrence with Kirby J on the particular point of the error of the trial judge in requiring the mother to show a 'compelling reason' for her move.

Callinan J was the dissenting judge in AMS. In Callinan J's view, there are no relevant legal principles in relocation cases, except the bare requirement of considering all the relevant factors that the Act mandates must be considered in determining the best interests of the child.[5] His judgment is instructive, given that he was one of two authors of the leading judgment in U and U. Callinan J said he could not find error in the trial judge's exercise of discretion. As to the way Family Court judges should approach their exercise of discretion, Callinan J held that 'the only critical requirement is that whatever approach is adopted it be the one best adapted to the case in hand to the ascertainment of the welfare of the child' (at para 24). Finally, on the issue of 'compelling reasons', Callinan J said the trial judge 'was not purporting to state any general principle ... [T]he relevance that a parent's desire to live in a particular place will have ... is susceptible of no statement of general principle' (at para 293).

After AMSthe Full Family Court accepted that the correct approach to relocation cases was a proper evaluation ofthe competing proposals. In A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035 (A v A) a Full Court, including the Chief Judge of the Family Court of Australia, went to some lengths to set out what they considered the post-AMS position to be. This judgment provided an analysis of the relevant issues to be weighed and set out in detail what the Full Court considered to be the correct way of approaching relocation cases. They noted that (emphasis added):

• it is necessary for a court to evaluate each of the proposals advanced by the parties; and

• the evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

The Full Court pointed out, however, that only the issue of 'compelling reasons' amounted to a binding ratio in AMS, and other comments, notably as to the correct approach to take, were obiter (A v A at para 64).

When I read the decision in AMS I was pleased that Family Courts would no longer be able to use a parent's reasons for moving as the ultimate determinant in relocation cases. The Act clearly does not permit such an approach.[6]

My first reaction on reading U and U was disappointment, as the outcome seemed at odds with the facts of that case. However, the more I have reflected on these two cases in combination the more I am convinced that there is a greater issue at stake here. That is, the failure of the majority of the High Court to deal with most of the pressing questions raised by relocation cases. Whilst Gleeson CJ, McHugh and Gummow JJ concurred with Kirby J in AMS on the crucial point, they were clear in limiting their concurrence to that specific issue. Of course, the error in approach in AMS was patent in the trial judge's judgment; his blinkered preoccupation with the mother's reasons for moving was hard to ignore. U and U presented a much greater challenge.

The second High Court relocation case: U and U

In U and U the High Court took the opportunity to revisit the issue of the correct approach to competing applications in relocation cases. This case involved an arranged marriage between parents who were both born in India, but who lived together in Australia after their marriage. After their first separation, the mother lived in India for two and a half years, with the father exercising regular contact with their child. The mother returned to Australia to attempt a reconciliation. When this failed, the father succeeded in restraining her from returning to India. The mother sought residence on the basis that she would live in India and the father sought residence, intending to raise the child in Australia. During the trial, the father effectively dropped his residence application. The mother had been asked in cross-examination what she would do if she were not permitted to take her daughter to India, and she replied that she would stay in Australia. Thus, in the mind of the trial judge, the only question was which of the 'mother's proposals' was best for the child. The trial judge preferred the option of the child staying with its mother in Australia.

The mother's High Court appeal contained six grounds. However, it is the decision on the first ground which is important for the future resolution of relocation disputes. This was framed as follows:

The trial judge and Full Court on appeal erred in their approach by failing to focus on and to analyse and to reach a conclusion on the separate proposals of the husband and wife and instead ultimately addressing the issue of whether the mother should be permitted to remove the child from the Commonwealth of Australia. [at para 28]

In particular, the mother argued that her proposal of living in India had not been evaluated. She argued that this undermined her human right to freedom of movement.

The majority decision of the High Court in U and U is found in the reasons of Gummow and Callinan JJ, who delivered a joint judgment, with which Gleeson CJ, Hayne J and McHugh J agreed. Hayne J made some further observations, with which Gleeson CJ and McHugh J concurred.

Gummow and Callinan JJ held that the trial judge had addressed his mind to the overarching principle, namely the best interests of the child (at para 81), and that the first ground of appeal was not made out. Despite AMS and A v A (and a great deal of overseas jurisprudence addressing precisely this issue) their Honours began: '[t]here is, in our opinion, an air of artificiality about the appellant's argument on the first ground' (at para 70). In addressing the issue of how the Family Court should approach competing proposals in relocation cases, the majority held, in essence, that as long as the trial judge applies their mind to the overarching principle, then this would be sufficient (at para 81). The only guiding comment as to how to approach these cases is that 'the Family Court is obliged to give careful consideration to the proposed arrangements of the parties' (at para 80).

These general statements do not address the complex tensions found in relocation cases. Nor do they address the specific point made in A v A, which was at the heart of the first ground of appeal: what amounts to 'evaluation' or 'careful consideration'? The reliance of the majority on the broad discretion of the Act to obviate the need for any careful consideration of the process of exercising that discretion, is consistent with Callinan J's approach in AMS. Subject to Hayne J's additional comments, this approach has now been adopted by five of the seven High Court judges.

What did Hayne J add? It has long been known by those in the family law system, and recently overtly recognised by the Family Court,[7] that only residential parents are restrained from moving 'in the best interests of the child'. Thus, non-residential parents are free to move, regardless of their reasons, and regardless of the impact of their move on their children. The disparate effect this has on women is self-evident. Leaving aside what this may say about decision ma ing in this area -as the majority of the High Court (including Hayne J) has chosen to do -there is no legal or logical justification for such an approach. Hayne J picks up on this narrow but important point, by reminding future relocation litigants that it is appropriate to consider whether the non-relocating parent might in fact move with the relocating parent to facilitate contact. However, Hayne J appears almost surprised that the case proceeded on the assumption that the father would not move: '[t]here may have been some sufficient and compelling reason for the parties to make that assumption' (at para 174). Any investigation of the case law in this area would have revealed that for the mother to have argued the case in such a way would have (previously) been fruitless. If the Family Court would not restrain contact parents from moving away from their children, it is hardly likely they would force them to move with them!

Kirby and Gaudron JJ formed the minority in U and U. In their separate judgments each addressed only the first appeal ground, as they both considered it sufficient to decide the appeal in favour of the mother.

Like Hayne J, Gaudron J took issue with the failure of the trial judge to consider the missing proposal, namely, that the father return to India. Unlike Hayne J, however, Gaudron J addressed what might underpin a system that has historically restrained only one parent from moving:[8]

The failure to explore ... [the possibility that the father could return to India] ... seems ... explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve ... [I]t is essential that ... each competing proposal be separately evaluated. [at paras 35-37]

Gaudron J went on to say that the mother was correct in asserting that the trial judge had failed to evaluate each of the proposals, and pointed to crucial issues of fact that were not addressed by the trial judge in his decision. It appears from the majority view, that it is sufficient to acknowledge the various options and then choose between them. Gaudron J clearly requires a higher standard of evaluation than the majority. The trial judge in U and U directed virtually no attention to the father's proposal for residence, said little of the mother's arrangements in Australia and did not compare how residence and contact were operating in India (the mother's proposal) as opposed to Australia (the father's proposal). For Gaudron J this did not amount to 'evaluation' and such a defect in process had the potential to affect the outcome of the case.

Kirby J's decision, as in AMS, considered in depth many of the issues raised in relocation cases. He emphasised: how mistakenly attributing a proposal to a party might affect the decision-making process; the importance of 'evaluating' parties' proposals; the well-recognised tactical advantage gained by putting an 'alternative' proposition to a relocating parent in cross-examination; the need to consider the disproportionately detrimental effect on women, and migrant women in particular, that restrictions on movement can have; the impact of the long line of English jurisprudence in this area, and; the relevance of the child's wishes (at paras 141-6).

The missing analysis in U and U

I have suggested that Kirby and Gaudron JJ (and Hayne J to some degree) have grappled with the fundamental issues of relocation cases. What then have the remaining majority of the bench failed to address in U and U? In my view there were a number of matters worthy of their attention,[9] but I will address only the main points.

First, the failure to lay down any guiding principles (save for the veto ofthe 'compelling reason' requirement) in such a difficult area suggests a lack of consideration of the acknowledged dangers of the best interests principle. In family law circles, decades have been spent discussing the problems that arise from the broad discretion that attaches to the best interests principle.[10] In particular, the indeterminacy of this principle has led to fears that judges are too easily able to exercise personal prejudices and that it allows undisclosed principles and policies to be applied.[11] Against this backdrop, we have seen a history of the Family Court developing guiding principles, where appropriate, to ensure the proper and fair, application of this principle.[12]It seems the majority of the High Court harbours no such fears in the relocation area, despite what it witnessed in AMS.

This leads to the second, more specific point. Relocation cases are not immune from these dangers, in fact, quite the reverse. In a climate where contact parents (mostly men) have been permitted to move, regardless of children's best interests, whilst residential parents (mostly women) had to prove a 'compelling reason' before being allowed to relocate, particular vigilance is required to ensure the best interests principle is not used as the rationale for simple discrimination. One would have thought that by 2002, the fact that a legal principle is operating in a fashion that overtly discriminates against women, without the slightest hint of legal rationale, would have rung some alarm bells. To reject the 'compelling reasons' requirement in AMS without any consideration of what underpinned it, and then to proceed in U and U as if the trial judge's decision in AMS was mere serendipity, is astounding. Even if one chooses to ignore the fact that these cases have disproportionately adverse consequences for women, the question of the disparate treatment of residential and contact parents where relocation is concerned warrants a closer look at what is motivating decision making in this area.

This leads to my third point. It may be correct to say that a parent's freedom to live where they choose is subject to the best interests of the child concerned. However, is that sufficient discussion of such a complex tension? In his judgment in U and U, Kirby J explored the English and Canadian case law on this topic. The case law in those jurisdictions has acknowledged the danger that a child's right to contact with its parents can take on an almost determinative character in relocation disputes, thereby rendering parents' rights to choose how they live meaningless. Kirby J referred to Tyler v Tyler [1989] 2 FLR (UK) 158 where:

Kerr LJ summarised the position reached in that country in these terms:

[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.

The 'hesitation' mentioned in Tyler does, however, evidence a greater attention to the realities of the position of the primary carer (overwhelmingly female). It allows a proper consideration of the factors affecting the carer's life, such 'as their freedom of movement, association, employment and personal relationships. These are to be weighed against any negative impacts of relocation, such as reduced contact. However, this last factor should not dictate the result, any more than should the carer's desire for relocation. [at paras 155-8]

Kirby J and Kerr LJ are acknowledging here the need to ensure, by adopting a proper process, that all rights and interests are fairly weighed in relocation decision making.

The striking failure by the majority in U and U to refer to English case law (despite it being argued by counsel for the wife) came home to me as I read the High Court's decision in another case, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) Aust Torts Reports 81-672 (Tame and Annetts). In that case, six of the seven judges refer to English case law as recent as 1999. Between them, five of their Honours cover case law from the United Kingdom, the United States of America, Canada and New Zealand. Five of the judges consider what authors of textbooks say on the matter before them, and three go further, looking at other published literature on the topic. The subject matter of Tame and Annetts was tort, and in particular the rules governing recovery for psychiatric injury. The Court was addressing a matter of common law, but that is not the sole explanation for the detailed reference to modern case law from other common law jurisdictions. Every tort lawyer knows only too well the complex arguments involved in determining the limits on recovery for nervous shock. In working their way through these sophisticated arguments, the High Court judges draw useful insights from colleagues abroad hearing cases in similar legal and social cultures, as well as from other published materials on the topic. Whilst modern family law is legislatively based, there are great similarities in family law regimes operating throughout the common law countries. What can be the rationale for (apparently) ignoring such useful jurisprudence? Indeed, the Full Family Court has often drawn on this source in appropriate cases. [13]

Finally, there is the failure of the High Court in U and Uto address what it means to 'evaluate' a proposal. The fact that the Full Family Court had already adverted to this in A v A as a necessary pre-requisite to good decision making in relocation cases and that the mother had relied on this as a ground of appeal, meant the issue was squarely before the Court. Of course, the majority did mention the issue, dismissing it as 'artificial'. The consequence of their Honours' reasoning is that simply throwing all the balls in the air becomes proper process for a Family Court judge. Not surprisingly, there was no discussion of how this could exacerbate the problem of decisions being based on improper reasoning.


The High Court has an important role in interpreting the Constitution. Indeed, AMS involved a possible breach of s.92 of the Constitution, which guarantees freedom of interstate movement. Although this matter was not determinative of the appeal, there was considerable and lengthy discussion of this constitutional point. In my view, the majority of the High Court in AMS and U and U did not, however, engage with the fundamental legal issues raised in family law relocation cases. As long as the government sees courts as an appropriate way of resolving parenting disputes, the High Court remains the final arbiter on family law. The community, and children in particular, have the right to expect that their family law disputes will be accorded the same level of consideration as other areas of law. Family lawyers know all too well the low esteem in which some of their peers in the legal profession hold this area of law, as if somehow it is not 'real' law. This perception is not assisted by decisions such as U and U.

Nor will U and U inspire confidence in lawyers hoping for guidance in other aspects of family law. For exarriple, there has recently been judicial disagreement amongst Family Court judges over how to treat the contributions of spouses where multi-million dollar fortunes have been accumulated during the course of a marriage. Differently constituted Full Family Courts have adopted dramatically different approaches[14] and there have been recent and influential decisions in the UK.[15] After AMS, I had suggested that High Court guidance was needed in this area also.[16] Now I am not so sure.

The Chief Justice of Australia, the Honourable Murray Gleeson, AC said: [17]

Legal reasoning that commands respect does so upon the basis of adherence to legal principle.

The most important measure of the performance of courts is the extent of public confidence in their independence, integrity and impartiality.[18]

I would suggest that the public could better assess these aspects of day to day judicial performance in relocation cases if the country's most senior judges provided greater guidance in this area by looking more closely at the legal principles at stake.

[*] Lisa Young teaches Law at Murdoch University.

© 2003 Lisa Young (text)

© 2003 Jane Cafarella (cartoon)

[1] 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] Sec Young, L., 'Will Primary Residence Parents be as Free to Move as Custodial Parents Were?', (1996) 11(3) Australian Family Lawyer 31 and Young, L., 'B v B Family Law Reform Act 1995: Relocating the Rhetoric of Rights', [1997] MelbULawRw 28; (1997) 21 Melbourne University Law Review 722.

[3] Family Law Act 1975 (Cth), s.68F(2).

[4] Sec for example Re Marzon (1992) 175 CLR218 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(l995) FLC 92-598 where the Full Family Court considered how to treat children's wishes when applying the best interests principle.

[5] Sec Family Law Act 1975 (Cth) s.68F.

[6] See above, ref 2.

[7] Band 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 Sherry, S., 'Civic Virtue and the Feminine Voice in Constitutional Adjudication', (1986) 72 Virginia Law Review 543 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 Mnookin, R., 'Child Custody Adjudications: Judicial Functions in the Face of Indeterminacy', (1975) 39(3) Law and Contemporary Problems 226.

[11] Reece, H., 'The Paramountey Principle: Consensus or Construct?', (1996) 49 Current Legal Problems 267.

[12] See above, ref 7.

[13] See for example Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122.

[14] Compare for example JEL v DDF(200l) FLC 93-075 and Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122.

[15] See Whitev White[2000]2FLR 981 andCowanv Cowan [2001] 2 FLR 192.

[16] Young, L., 'A Special Rule for "Special Skill": Is it Really "Common Sense"?', (2001) 7(6) Current Family Law 189 at 198.

[17] Radio National's The Boyer Lectures, Lecture Six, 'The Judiciary' at <> .

[18] See <> .

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