A mother who sought to move back to India with her 8-year-old daughter after her marriage breakdown has lost a landmark case in the High Court.

In U v U [2002] HCA 36, both husband and wife were Indian nationals living in New South Wales. The couple met and married in India and later moved to Australia. Both the husband and wife had their families living back in India. The husband worked in stable and satisfying employment, whereas the wife struggled to find permanent employment and felt generally less settled. After the couple separated, the wife felt trapped with no sense of belonging in Australia and wished to return to India with her daughter who resided with her. She felt closer to her country of birth and wished to return to her family. The husband wanted to remain in Australia and opposed the wife’s wishes to return to India because it would result in him losing regular contact with his daughter.

The High Court decided in a majority decision of 5-2 that it would not be in the best interests of the child for her to move to India with her mother. In cases involving relocation, what is in the best interests of the child is the paramount consideration, but not the sole consideration. Other factors relating to the move are also considered by the court. The court sympathised with the mother’s desire to return to her native homeland to be with her family and recognised that she did have a right to relocate. However, the court considered that the mother’s desire to relocate was only one factor to be considered in determining what was in the best interests of the child. Regular contact with her father was obviously a major consideration for the child of the marriage and, after weighing up the factors to be taken into account, the court ultimately denied the wife’s application.

In a similar case before the Chief Justice of the Family Court, ZN & YH & the Child Representative [2002[ Fam CA 453, a mother lost her application to relocate to the United States with her three children and new husband. The mother had custody of her three children aged 14, 12 and 9 years since separating from her ex husband in 1994. She lived in Tasmania with her new husband, a citizen of the United States working in Tasmania on a visa. The mother wished to move to the United States with her children and new husband, but her ex husband (and father of the three children) wanted the younger child to finish primary school in Tasmania before moving overseas. The father had regular weekend contact with the children and, while he did not rule out a move overseas in the future, his objection was largely based on the timing of the move.

In upholding the test that the best interests of the children are paramount considerations but not the only ones, Chief Justice Nicholson considered all of the factors involved in the proposed move to the United States. He considered factors such as the mother’s economic capacity to support the move, the ability of contact by the father if the children did relocate, and the health and education systems available in the new environment. The Chief Justice also interviewed the children to determine whether they wanted to relocate to the United States.

The Chief Justice decided that the best interests of the children were not served by granting the mother the right to relocate them to the United States. He stated that the detriment caused to the children by not regularly seeing their father would outweigh any benefits of the move. He declined to make an order for any future move, stating that such an order would be unfair to the children. He left it open for the parents to agree to any future move when the time arose.

These cases highlight the joint responsibility of parenting regardless of which parent resides with the children. The courts consider regular contact with both parents to be a significant right of children and it will not be interfered with by the granting of an application by one parent to relocate unless extenuating circumstances exist. These cases also highlight the sacrifices often made by parents - the desire to move and start afresh in a new relationship is often forfeited.