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Case Note
Lisa Young[*]
In 1999 the High Court took its first look at the vexed issue of relocation in family law matters: what to do when a residence parent wishes to move away, with the child/ren, from a contact parent. In that case, AMS v AIF; AIF v AMS (‘AMS’),[2] the High Court held (by a majority of 6-1) that the trial Judge had erroneously required the mother to establish she had a ‘good reason’ for her proposed move from Perth to Darwin. The paramount consideration for any parenting order is the best interests of the child,[3] and while a parent's reasons for moving might well be relevant to that inquiry, the case held there is no pre-requisite that a parent establish a compelling reason before the move is permitted.
Kirby J also foreshadowed that, in cases where the relocation was to be overseas, rather than interstate, different considerations might apply, though it was not to be assumed that relocation would necessarily be prohibited.[4]
Gaudron J raised what she considered a more fundamental issue - the approach that the deciding judge takes to the alternative proposals put by the parties. Gaudron J said that the Court must consider ‘the competing claims of each parent and the arrangements that each could make’.[5] 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, namely, should the child live with the relocating parent in their proposed location or with the other parent, in their proposed location. This approach has been affirmed by the Full Family Court of Australia in A v A.[6]
In U and U the High Court has taken the opportunity to address in more detail the question of the correct approach to competing proposals for residence, where one parent proposes to relocate. This question arose in the context of a proposed move overseas. Whilst on first blush this decision seems to auger badly for parents wishing to relocate with their children - the relocating mother was restrained - a close reading reveals that all hope may not be lost for parents hoping for equal treatment in the Family Court. However, even if parents are treated equally, a question remains as to whether the Family Court should reconsider its apparent willingness to impede the freedom of movement of parents generally.
The parties in this case, both University graduates, were born in Mumbai, India. They married there in 1989, a marriage that was apparently arranged.[8] At the time of marriage the husband, an accountant, was an Australian citizen, having moved here in 1973 when he was 18. The father's immediate family live in Australia also. The mother had worked in both London and India before marriage. She had a responsible position as a shipbroker in London and was also an imports co-ordinator in India. She came to Australia 4 months after the marriage, and has permanent resident status. The child of the marriage, N, was born in 1994. The mother stopped working just before N's birth. When she later wished to return to work she found it difficult in Australia, securing only casual, low level clerical work.
The parties separated in July 1995. The wife had very few friends, family or other support in Australia and was unhappy living here. Mumbai, on the other hand, offered her accommodation with her mother, who was very financially secure, and better employment opportunities. She also had a strong network of family and friends, including the husband's extended family, in Mumbai. Without informing the father, the mother returned to Mumbai with N. In addition to leaving the father a note as to her whereabouts, the wife made contact with the husband when she arrived in Mumbai.
In August 1995 the husband travelled to Mumbai and instituted proceedings there for custody of N. In March 1996 consent orders were made granting the mother custody of N until the parties' divorce decree was granted. The mother also consented in those orders to retain N's Australian citizenship until that time.
The mother and N were in Mumbai until January 1998. During their two and a half year stay in Mumbai, the father visited N 5 times, on some occasions staying with the mother and her family. The mother returned to Australia in January 1998 to attempt a reconciliation with the father. In June 1998 the father began ex parte proceedings to restrain the mother from leaving the country, as a result of which N's name went on to the 'watch list'. At the same time, he gave the mother return airfare tickets to Mumbai for her and N so they could have a holiday there if they wished. The wife then tried, unsuccessfully, to leave Australia, to return to Mumbai. She had not advised the father of her plans to leave.
The mother's application sought residence of N, on the basis that she would live in Mumbai with N. She proposed unlimited, though supervised, contact in Mumbai, and two months uninterrupted contact each year in Australia. The mother offered to pay half of the contact airf ares and receive reduced child support in light of the contact costs. By the time the matter came to trial, the mother had amended the contact proposed to two visits by the father to Mumbai each year, and two visits by the child to the father in Australia each year.
The father cross-applied seeking residence of N, with specified contact to the mother. He further sought that, if the mother were granted residence of N, she be restrained from leaving the Sydney-Wollongong area, with specified contact to him.
Although it was not raised by the mother in her application, in cross-examination the mother was asked what would happen if she were not allowed to return with N to India. She replied that she would stay in Australia with N. O'Ryan J, the trial Judge, used this as the basis for considering three possible outcomes: residence to the mother in Mumbai, residence to the mother in Australia and residence to the father in Australia. However, at trial the father conceded that it would be best for N to live with the mother.[9]
The trial Judge concluded that the preferred option was that the wife remain in Australia, and N live with her. In support of the wife having residence of N, the trial Judge found that the child had a stronger bond to the mother than the father, and that she was the established primary carer. No criticism was made of the arrangements in either country, nor of either party's capacity to provide for the various needs of the child. It was also found, though, that the mother would be very unhappy if forced to remain in Australia, and that she felt lonely and isolated. It was accepted this would impact on her capacity to cope and the quality of life in her home. However, the trial Judge interpreted a Counsellor's report obtained under s65F of the Family Law Act 1975 (‘the Act’) as finding it was ‘important that the child have frequent and liberal contact with both parents’.[10] Moreover, he seemed unconvinced that the mother would comply with the proposed contact regime and do all necessary to ensure a ‘proper and meaningful relationship between the husband and the child’.[11] Weighing all this up, O'Ryan J concluded that, in this finely balanced case, contact should not be curtailed by permitting the mother to return to Mumbai. The final orders were that N reside with her mother, that there be contact to the father and that both parents be restrained from changing N's home from the immediate Sydney/Wollongong area.[12]
The Full Court of the Family Court (Kay, Holden and Carter JJ) held unanimously that, though O'Ryan J had erred in his finding as to the Counsellor's view, this ‘was not of a sufficient magnitude to otherwise vitiate an unimpeachable judgment’.[13]
Although the mother based her appeal on 6 grounds,[14] it is the decision on the first of those grounds which is the most significant in terms of the future resolution of relocation decisions. That ground of appeal 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[15]
The husband, who maintained that the questions of residence and relocation must be considered together, highlighted the trial Judge's reliance on two matters: the importance of his liberal and frequent contact with N and the danger that the wife would not facilitate contact given her past actions.[16]
The wife stressed the trial Judge's finding that she was the appropriate residential parent, and argued that her proposal of living in India had not been evaluated. This, she said, undermined her human right to freedom of movement. She further denied that the evidence supported a conclusion that she would not facilitate contact and pointed to the history of contact. The orders, she said,
confined her, effectively, to living in a place and in circumstances for the convenience of the husband, who did not, for his part, offer to relocate his home and work in India but expected life to go on uninterrupted whilst the wife continued to be hostage to his contact requirements. Effectively, this imposed on the wife not only the primary responsibilities of providing residence and most of the obligations of care for the child but also serious economic, personal and emotional burdens.[17]
The majority decision 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, and very important, observations, with which Gleeson CJ and McHugh J agreed.
Callinan J's decision in this case is not surprising, given that he had found no error in the trial Judge's decision in AMS. Gleeson CJ, McHugh and Gummow JJ, on the other hand, had concurred with Kirby J in AMS in finding the trial Judge mistakenly required the mother to present ‘compelling reasons’ before being permitted to relocate. They reaffirmed this point in U and U,[18] concluding that no such test had been applied here. They further held that the trial Judge had addressed his mind to the overarching question, namely the best interests of N,[19] and that the first ground of appeal was not made out. In the majority's view, the trial Judge was faced with a finely balanced case. He was not bound by any of the proposals put forward by the parties. In fact, the majority felt that the first ground of appeal had an ‘air of artificiality’.[20] The trial Judge, they held, had considered all of the relevant evidence and he made a decision that he believed was in N's best interests. Thus, the wife's appeal failed.
Hayne J added some very interesting, and important, qualifications to this majority view. Whilst agreeing that the Court was not bound to consider only the proposals put by the parents, he did not see this as permitting some ‘roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest’.[21] In this case, the only evidence led concerned these three proposals. There was no discussion of the father moving to India and whilst, as Hayne J points out, there may have been some justifiable reason why this was not an option, that issue was not explored. Therefore, said Hayne J, the failure to consider that option was not an error. However, Hayne J went on to say that this was a matter that ‘would ordinarily’ be raised in relocation cases.
If effect is to be given to... [the principles underlying the objects of Part VII of the Act]...it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.[22]
Kirby and Gaudron JJ delivered separate minority decisions, however, both only addressed the first ground of appeal, as in their separate views that was sufficient to decide the appeal in favour of the appellant mother. Gaudron J accepted that there were three proposals for parenting arrangements put by the parents: the mother's proposal to live in India, and the father's competing proposals, both of which involved N remaining in Australia. In Gaudron J's view there was no want of procedural fairness in considering the three proposals (all of which were disclosed in the applications), however
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 wither 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.[23]
Gaudron J then concluded that O'Ryan J had failed to evaluate separately each of the three proposals. In her view, this probably resulted from the trial Judge's mistaken interpretation of the recommendations of the Counsellor who provided the report, referred to above. Whereas the Counsellor had made no recommendation as to the best outcome, the trial Judge took the report to be saying that the recommended outcome was one that delivered 'frequent and liberal' contact to both parents.[24] It was agreed by all of the High Court judges that this was erroneous.[25] Having made this error, Gaudron J found that this led the trial Judge to choose the proposal - from amongst the three he had - that best achieved that outcome. What he did not do, according to Gaudron J, was give serious consideration to all of the evidence that related to each of the three proposals.
Kirby J approached the matter differently. He took issue with the trial Judge's reference to the proposal that the wife stay in Australia as being her proposal. The application by the wife did not include this proposal, though it did seek permission to take the child out of the jurisdiction. It was in response to this latter request that the husband sought his injunctive relief against the wife. In Kirby J's view, the trial Judge misunderstood or misstated the wife's case, and in the process 'sidelined' the proposal put in her application. By treating the wife's case on the basis that she had put two proposals - one of which involved her staying in Australia - the trial Judge had effectively condemned the wife to showing a good reason why that proposal should not be preferred. Kirby J held that the elevation of her response to a proposal was an appellable error and was not corrected on appeal to the Full Court, as it should have been.[26]
Kirby J then returned to the finding of the High Court in AMS (reiterated in the Full Court decision of A v A)[27] that the Court is duty bound to ‘evaluate each of the proposals advanced by the parties on their respective merits’.[28] He argued that Gummow and Callinan JJ's assertion[29] that the Act, rather than the parties, defines the issue, was an ‘oversimplification’. Kirby J said the wording of the Act does not permit the Court to ignore the case put to it by a party, and choose instead to consider an alternative never advanced by that party.[30] The tactical advantage gained by putting an 'alternative' proposition to a relocating parent in cross-examination was well recognised,[31] and should not be allowed to take away from the decision maker the difficult decision of choosing between two parents in different locations. Moreover, Kirby J was not prepared to overlook that such an approach would have a disproportionately detrimental effect on women, and migrant women in particular.[32]
Kirby J then addressed English jurisprudence in this area. Though their decisions are not binding in Australia, UK courts are dealing with identical issues. Kirby J endorsed Thorpe LJ's call for a consistent approach in ‘the wider field of international family law’ such as has happened in other areas, notably abduction.[33] Kirby J then endorsed to a long line of English authority that emphasises the need to exercise great caution before impinging on a residence parent's freedom to work and live where they please.[34] Whilst there is no presumption of a right to move, and the child's best interests remain paramount, all relevant factors must be considered and weighed and the ‘general quality of life of both the parents and the child is relevant’.[35]
Kirby J also considered the relevance of the child's wishes, noting that whilst it is to be expected a child would favour frequent face-to-face contact, that should not be given undue weight. To place such emphasis on the child's right to contact with their non-residence parent would ‘entrench gendered social and economic consequences of caregiving upon women in a way that is contrary to the Convention on the Elimination of All Forms of Discrimination against Women’.[36]
Hayne J's comments were expressly accepted by Gleeson CJ and McHugh J. It must be assumed that Gaudron and Kirby JJ agree with Hayne J's comments given the overall view they took of the case. It appears therefore that we have 5 of the 7 High Court judges holding that it is not appropriate to ask one thing of relocating residence parents and another of contact parents in these cases. If mothers are to be asked whether they would stay if the move is not permitted for the child, so too should fathers be asked if they would move to ensure frequent contact with their child/ren. This might not sound radical to those outside of the family law arena. However, it is entirely novel to Family Court decision making, in the same way that restraining a move of a contact parent - in the interests of the child - is unheard of in the Family Court. The idea that residence parents alone can be told where they must live bears no logical justification and it is long past time that the Family Court accepted this simple premise.
One might feel some considerable sympathy for the mother in this case. Who knows what would have happened had her case been argued differently. This decision suggests that her case was significantly weakened by her failure to argue a position that, until now, would certainly have failed in the Family Court. After AMS one might have reasonably assumed that the strongest position to take was to stick with the overseas proposal, and have this evaluated against the father's proposal to change residence. In taking that course, however, the mother in this case was subjected to aggressive cross-examination in an attempt to discredit her for failing to fully address the father's proposal that she remain in Australia.[37] As Gaudron J correctly notes, the mother was wrongly criticised by the trial Judge for that alleged failure.[38]
It will be interesting to see how decision makers view future applications that seek to govern where contact parents live. Perhaps such applications will help judges come to grips, as Gaudron and Kirby JJ have, with the wider implications of the Family Court seeking to intervene in family life in a way no one would endure for intact families. Certainly, disputes between parties must be resolved. In some cases, notably where child protection is a significant issue, it is appropriate for a Court to look seriously beyond the proposals put by the parents. But as a general rule, the Family Court should not be in the business of crystal ball gazing as to what hypothetical alternative arrangements might advance the welfare of the children. Nor should it be deciding on what are essentially lifestyle choices for parents. This is a well accepted principle where religion is concerned, for example. One can imagine a whole array of orders the Family Court might make that could improve a child's environment. Choosing where parents live is just one of those matters and it should normally be left to the parents to decide that for themselves. The Family Court can then play its part in deciding where the child shall live, when the parents cannot agree.
Nor should the growing research about what family environments achieve the most positive outcomes for children be seized upon as the justification for orders restraining parents' freedom to choose their place of residence.[39] The Family Court has always known that liberal contact with both parents is usually positive for the child/ren of that family. It is, however, just one of many factors. If the Family Court were to take the view that research of this kind were determinative of outcomes it would be elevating that factor above others in a way that is impermissible under the Act. Moreover, it is a very slippery slope.
The Family Court's job is to decide disputes based on the evidence before it. It was not created to engineer parent's daily lives - in ways unacceptable to them - so as (hopefully) to improve the lives of Australia's children. This is the heart of the issue. The process of dispute resolution entrusted to the Family Court must be informed by the best interests of the child. It is an entirely different proposition to say that the Family Court must set about trying to secure what it considers are the best family arrangements possible for children. This is what those who advocate restrictions on movement are in essence arguing. And this is what the High Court is permitting.
The majority in U and U did not engage with these fundamental matters. Their view that the first ground of appeal had an ‘air of artificiality’ is striking, for two reasons. Firstly, that ground raised whether the competing proposals had been properly evaluated. Nowhere in the trial Judge's decision is there an evaluation, or even discussion, of the two proposals that involved N living in Australia. Thus, it would appear it is sufficient now simply to acknowledge a proposal. Secondly, there is considerable international jurisprudence on the significance of evaluating competing proposals, none of which was considered by the majority. Perhaps a more rigorous examination of the issues involved - as seen in Kirby J's decision - would have helped the majority understand the very real differences in outcomes that result from the different approaches being discussed. This is not a matter that can be satisfactorily argued by simply relying on the broad discretion of the Act, as the majority did. Not only must the High Court engage with the issue of discriminatory treatment - it must engage with the fundamental nature of the power given under the Act.
[1] [2002] HCA 36 (5 September 2002).
[*] BJuris LLB (UWA LLM (Cantab), Senior Lecturer, School of Law, Murdoch University.
[2] [1999] FLC 92-852.
[3] s65E, Family Law Act.
[4] See the reference to this by Kirby J at 99.
[5] At 94.
[6] 2000 [FLC] 93-035.
[7] These are drawn only from the judgments of the High Court and the trial Judge.
[8] This information was provided by one of the parties.
[9] At 108.
[10] At 22.
[11] At 23.
[12] At 100.
[13] At 27.
[14] At 68.
[15] At 28.
[16] At 109.
[17] At 110-114.
[18] At 82.
[19] At 81.
[20] At 70.
[21] At 172.
[22] At 176.
[23] At 35-37.
[24] At 41.
[25] Gaudron J, at 22.
[26] At 134-135.
[27] At 136.
[28] At 136.
[29] At 72.
[30] At 137.
[31] Kirby J refers to Payne v Payne [2001] WLR 1826 at 138.
[32] At 141 - 146.
[33] At 150.
[34] At 152-155.
[35] At 157-159.
[36] At 161.
[37] At 70.
[38] At 32.
[39] As is often raised by men's groups and was advanced by Bettina Arndt in discussing U and U on Australia Talks Back, ABC Radio, 30 September 2002.
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