Family Law

U v U [2002] HCA 36

A woman, born in India and resident in Australia, applied to the Family Court on the breakdown of her marriage for parenting orders that would allow her to return permanently with her daughter back to her home in India. She did not have the support of family or friends, nor had she been able to find skilled work in Australia. The father had also been born in India but was an Australian citizen, and had been living and working in Australia since 1973. The woman’s application was refused. On appeal to the Full Court of the Family Court, it was submitted for the mother that the judge had failed to consider and compare the two proposals of the parties and had erroneously focused on the security of the father’s contact with the child. The appeal was dismissed. In affirming the Family Court’s decision, it was held by the High Court that the objective of the Family Court had to be to achieve the child’s best interests. This is the key Australian family law case concerning international relocation.

Commentary author

Rachael Field is an Associate Professor in the Law School, Queensland University of Technology. Rachel is president of the Women’s Legal Service based in Queensland. Her research interests include alternative dispute resolution and family law.

Judgment author

Jonathan Crowe is an Associate Professor in the T C Beirne School of Law, University of Queensland. Jonathan has published widely on natural law theory and existentialist ethics as well as family law. His research interests include legal theory and moral philosophy.

Goode and Goode [2006] FamCA 1346

This case is an appeal against an interim decision about parenting arrangements heard by the Full Court of the Family Court. It was one of the earliest appellate decisions after the introduction, in July 2006, of a major amendment to the Family Law Act 1975 (Cth). The father’s appeal sought an order for equal shared parental responsibility and equal time. The mother raised allegations of domestic violence during the relationship, including that the father pushed her to the floor when she was pregnant, pushed and slapped her and threw her around the bedroom. The father denied the allegations. The case provided an opportunity for the Court to define the circumstances in which the new presumption of equal shared parental responsibility could be rebutted or not applied, to consider when equal time might be appropriate, to examine the impact of the amendments on interim hearings and to discuss new provisions intended to strengthen the court’s response to family violence. Instead, the court did not discuss the new sections relating to special processes where family violence is alleged, nor did it chastise the trial judge for not applying them. Further, the Full Court almost conflated parental responsibility and time and suggested that equal time orders could be made even if the presumption were rebutted. Finally, it stated that the principle of maintaining the status quo at interim hearings had effectively been effaced by the new legislation. This matrix of interpretations and silences has proved very disadvantageous to mothers seeking parenting arrangements in the Family Court.

Commentary author

Ann Genovese is a Senior Lecturer in the Melbourne Law School, University of Melbourne, She is an interdisciplinary scholar with expertise in law and history. Ann is an editor for Australian Feminist Studies and Feminist Review. Ann’s research interests are the interrogation in different ways of history and theory of the relationship between Australian law, the State and political culture.

Judgment author

Zoe Rathus is a Senior Lecturer and Director of the Clinical Legal Education Program at the Griffith University Law School. In 2011, Zoe was awarded membership in the General Division of the Order of Australia for service to the law, particularly through contributions to the rights of women, children and the Indigenous community, to education and to professional organisations. Her research interest is in family law.

Renata Alexander is a Senior Lecturer in the Faculty of Law, Monash University, in addition to practising at the Victorian Bar on a part-time basis. Renata previously held the position of Deputy Registrar for the Family Court of Australia. Her research interests are principally in family law.