• Specific Year
    Any

Behrens, Juliet --- "U V U: The High Court on Relocation" [2003] MelbULawRw 20; (2003) 27(2) Melbourne University Law Review 572

[*] [2002] HCA 36; (2002) 191 ALR 289.

[†] BA, LLB, PhD (Tas); Senior Lecturer, Faculty of Law, The Australian National University. Many thanks to Keren Adams for her excellent research assistance.

[1] [2002] HCA 36; (2002) 191 ALR 289.

[2] U v U (Unreported, Family Court of Australia, O’Ryan J, 6 March 2000) 2.

[3] U v U (Unreported, Full Court of the Family Court of Australia, Kay, Holden and Carter JJ, 13 September 2000).

[4] Justice Michael Kirby, ‘Children and Family Law — Paramount Interests and Human Rights’ (Paper presented at the International Association of Youth and Family Judges and Magistrates, XVI World Congress 2002, Melbourne, 27 October 2002) 25.

[5] See Juliet Behrens, ‘A Feminist Perspective on B and B (The Family Court and Mobility)’ (1997) 2 Sister in Law 65; Patricia Easteal, Juliet Behrens and Lisa Young, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law 234.

[6] Leonie Lamont, ‘Custody Ties That Bind’, The Sydney Morning Herald (Sydney), 3 July 2002, 11.

[7] See, eg, Leonie Lamont, ‘Cards Stacked against Mothers, Says Judge’, The Sydney Morning Herald (Sydney), 3 July 2002, 7; Luke McIlveen, ‘Mother, Daughter Forced to Stay Here’, The Australian (Sydney), 6 September 2002, 5; Editorial, ‘Divorced Mothers Deserve Better’, The Sydney Morning Herald (Sydney), 13 September 2002, 10; Owen Corcoran, ‘Consider the Fathers’ Side before Changing the Law’, The Sydney Morning Herald (Sydney), 16 September 2002, 12; Bettina Arndt, ‘Long Road to Fair-Contact Rules’, The Sydney Morning Herald (Sydney), 20 September 2002, 13; Julie Szego, ‘How a Mother with Career Goals Split the High Court’, The Age (Melbourne), 5 October 2002, 14; Janet Albrechtsen, ‘Children Unheard amid Din for Parents’ Rights’, The Australian (Sydney), 9 October 2002, 13.

[8] AMS v AIF (1999) 199 CLR 160, 206 (Kirby J). Kirby J noted that approximately 84 per cent of residence parents are mothers. Thus, in practical terms, court orders restraining relocation restrict the freedom of movement of women far more than men. See also Easteal, Behrens and Young, above n 5, 240: in that study, 95 per cent of those wanting to relocate were women.

[9] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 735 (Nicholson CJ, Fogarty and Lindenmayer JJ) (‘B and B’); A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382, 397 (Nicholson CJ, Ellis and Coleman JJ) (‘A v A’).

[10] Family Law Act 1975 (Cth) s 65E.

[11] Family Law Act 1975 (Cth) s 60B.

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

[13] See Behrens, ‘A Feminist Perspective on B and B’, above n 5; Easteal, Behrens and Young, above n 5.

[14] (1999) 199 CLR 160.

[15] [2000] FamCA 751; (2000) 26 Fam LR 382.

[16] Ibid 409 (Nicholson CJ, Ellis and Coleman JJ).

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] (1999) 199 CLR 160, 209.

[22] U v U (Unreported, Family Court of Australia, O’Ryan J, 6 March 2000) [160].

[23] U v U [2002] HCA 36; (2002) 191 ALR 289, 290 (Gaudron J). The husband travelled to India five times during the two and a half year separation period and had extensive contact with the child.

[24] Ibid 293 (Gaudron J), quoting the counsellor.

[25] I have read the affidavit of the wife filed in these proceedings at the Sydney Registry on 10 June 2000. These allegations are made at [37]–[51] of the affidavit.

[26] U v U (Unreported, Family Court of Australia, O’Ryan J, 6 March 2000) [196].

[27] U v U [2002] HCA 36; (2002) 191 ALR 289, 302 (Gummow and Callinan JJ).

[28] Transcript of Proceedings, U v U (High Court of Australia, Gaudron J, 12 October 2001) 6.

[29] AMS v AIF (1999) 199 CLR 160, 191.

[30] U v U [2002] HCA 36; (2002) 191 ALR 289, 318 (Kirby J).

[31] Ibid 302.

[32] Ibid 326.

[33] Ibid 327 (emphasis in original).

[34] Ibid 321.

[35] Ibid 296.

[36] Ibid.

[37] Ibid 297.

[38] [2000] FamCA 751; (2000) 26 Fam LR 382, 408–9 (Nicholson CJ, Ellis and Coleman JJ).

[39] [2002] HCA 36; (2000) 191 ALR 289, 306.

[40] See Juliet Behrens, ‘Family Law’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 269.

[41] U v U [2002] HCA 36; (2002) 191 ALR 289, 308.

[42] [2001] EWCA Civ 166; [2001] Fam 473 (‘Payne’).

[43] Ibid 500.

[44] U v U [2002] HCA 36; (2002) 191 ALR 289, 308 (Gummow and Callinan JJ).

[45] Ibid 325.

[46] Opened for signature 1 March 1980, 1249 UNTS 13, 19 ILM 33 (entered into force 3 September 1981).

[47] Ibid 302 (Gummow and Callinan JJ).

[48] AMS v AIF (1999) 199 CLR 160, 218 (Kirby J).

[49] Section 49 provides: ‘Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’

[50] (1999) 199 CLR 160, 179 (Gleeson CJ, McHugh and Gummow JJ), 190 (Gaudron J), 214 (Kirby J).

[51] Ibid 179 (Gleeson CJ, McHugh and Gummow JJ).

[52] Ibid 216.

[53] Ibid 190.

[54] U v U [2002] HCA 36; (2002) 191 ALR 289, 308 (Gummow and Callinan JJ).

[55] Justice Richard Chisholm, ‘“The Paramount Consideration”: Children’s Interests in Family Law’ (2002) 16 Australian Journal of Family Law 87, 87.

[56] Ibid 93 (emphasis in original).

[57] Ibid 89.

[58] Ibid 107.

[59] The first two of these themes I have considered in greater detail elsewhere: see Juliet Behrens, ‘The Form and Substance of Australian Legislation on Parenting Orders: A Case for the Principles of Care and Diversity and Presumptions Based on Them’ (2002) 24 Journal of Social Welfare and Family Law 401.

[60] As John Dewar and Stephen Parker have noted, Part VII was influenced strongly by the Children Act 1989 (UK) c 41 and was seen as a move away from discretion and towards a more rule-like framework: see John Dewar and Stephen Parker, ‘The Impact of the New Part VII Family Law Act 1975(1999) 13 Australian Journal of Family Law 96. The case law has confirmed, however, that decisions must still be made on the basis of an individualised assessment of the best interests of the child: Behrens, ‘Form and Substance of Australian Legislation on Parenting Orders’, above n 59, 404–5.

[61] [1996] 2 SCR 27. For a discussion of this case, see Susan Boyd, ‘Child Custody, Relocation and the Post-Divorce Family Unit: Gordon v Goertz in the Supreme Court of Canada’ (1997) 9 Canadian Journal of Women and the Law 447. See also Martha Bailey, ‘The Right of the Non-Custodial Parent to an Order for Return of a Child under the Hague Convention(1996) 13 Canadian Journal of Family Law 287.

[62] [2002] HCA 36; (2002) 191 ALR 289, 324.

[63] See, eg, Peter McManus, ‘Guidelines in Family Law: Rules by Another Name?’ (2001) 15 Australian Journal of Family Law 51; Frank Bates, ‘“... Which Comforts while It Mocks ...”: Some Paradoxes in Modern Family Law’ [2000] NewcLawRw 2; (2000) 4 Newcastle Law Review 17; John Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 Modern Law Review 467. The option of a presumption in favour of the primary caregiver is discussed in Susan Boyd, Helen Rhoades and Kate Burns, ‘The Politics of a Primary Caregiver Presumption: A Conversation’ (1999) 13 Australian Journal of Family Law 233.

[64] See Behrens, ‘Form and Substance of Australian Legislation on Parenting Orders’, above n 59.

[65] Ibid.

[66] As numerous studies have shown, sole parent families headed by women are far more likely to live in poverty: see, eg, Ruth Weston and Bruce Smyth, ‘Financial Living Standards after Divorce’ (2000) 55 Family Matters 10.

[67] See Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (2000) 86.

[68] U v U [2002] HCA 36; (2002) 191 ALR 289, 325.

[69] Ibid 296.

[70] (1997) 21 Fam LR 676.

[71] Ibid 750 (Nicholson CJ, Fogarty and Lindenmayer JJ).

[72] Carol Smart has suggested that, at least in the UK context, there is a climate in which the claims of men caring about children are heard over the claims of women caring for children: see Carol Smart, ‘Losing the Struggle for Another Voice: The Case of Family Law’ (1995) 18 Dalhousie Law Journal 173.

[73] Autopoietic theory derives from the work of Niklas Luhmann. For its application to law, see Gunther Teubner, Law as an Autopoietic System (1993). For an application in the family law context, see Michael King, A Better World for Children? Explorations in Morality and Authority (1997).

[74] U v U [2002] HCA 36; (2002) 191 ALR 289, 295 (Gaudron J), quoting the Full Court.

[75] See Carol Smart, ‘Divorce and Changing Family Practices in a Post-Traditional Society: Moral Decline or Changes to Moral Practices?’ (2000) 56 Family Matters 10, 18.

[76] For a more detailed discussion of the politics of primary caregiver presumptions, see Boyd, Rhoades and Burns, above n 63.

[77] Dewar and Parker, above n 60, 116, referring to the work of Herbert Jacob.

[78] See Juliet Behrens, ‘Ending the Silence, But ... Family Violence under the Family Law Reform Act 1995(1996) 10 Australian Journal of Family Law 35.

[79] Rhoades, Graycar and Harrison, above n 67, 82.

[80] Family Law Council, Family Law and Child Protection: Final Report (2000) 1.

[81] Much recent research has demonstrated that violence against a child’s caregiver can also have a significant impact on a child’s wellbeing: see, eg, National Committee on Violence against Women, Department of the Prime Minister and Cabinet, National Strategy on Violence against Women (1992). See also articles published in (1995) 9 Australian Journal of Family Law 1, a special issue on family violence.

[82] For a discussion of how gender roles are constructed in family law, see Richard Collier, ‘“Waiting Till Father Gets Home”: The Reconstruction of Fatherhood in Family Law’ (1995) 4 Social and Legal Studies: An International Journal 5; Helen Rhoades, ‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 International Journal of Law, Policy and the Family 71.

[83] Dewar and Parker, above n 60.

[84] Ibid 103.

Download

No downloadable files available