U and U: Reflections on the High Court and family law

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