The issue

Say you are a parent who has been granted custody of the children of your previous marriage. This is called a "residency order" – it means the Family Court has decided the children will live with you. Can you take them interstate, away from the other parent? It’s a good question, so good in fact that the Full Court of the Family Court held up about a dozen cases that raised this issue until it had decided one of them as a test case. It handed down this decision in July 1997.

What’s the Full Court?

This is the place you go to appeal against a decision of a single Family Court judge. At the Full Court, three judges make the decision. In this case one of them was the Chief Justice of the Family Court, Justice Alastair Nicholson.

What's this case about?

The first time the Family Court heard this case the judge allowed a mother to take her two children from Cairns to live in Victoria, where they would rarely be able to see the father who continued to live in Cairns. The father said this was against the new family laws that came into effect in 1996, and which make it clear that children have a right to regularly see both their parents. How could he do this if they lived thousands of kilometres away? The Full Court of the Family Court had to decide whether he was right or not.

What the court said

Yes, the court said, it is true that the law has changed – but what has not changed is that the rights of a child are still the most important factor in deciding what is best for the child’s future. If that means the child goes to live in another State and sees less of one parent, so be it. This is because parents should not be seen to be "imprisoned" by orders of the Family Court, and ultimately this is not necessarily what is best for the child. This was also seen to be consistent with the past decisions of the Court – just because there have been changes in the law, it did not mean that everything that has gone before is now irrelevant.

As part of its decision the court stated that "…to freeze both parents at the location to which they went after separation so that the children may continue to have that contact with each of them is most unlikely to serve the long-term best interests of the children." The court went on to say that this would be especially so if one or both of the parents had to give up a chance to improve their economic opportunities.

What fathers’ groups say

It’s understandable that some associations that claim to represent "fathers’ rights" are unhappy with the decision. In their minds it is usually the father who loses out in custody battles, and the Full Court decision seems to attack their right to see the child. The Lone Fathers Association called the decision an outrage. The Men’s Rights Agency in Brisbane said the decision was contrary to the changes to the Family Law Act and the position of the Federal Attorney General Daryl Williams QC, who argued in court in favour of the rights of both parents to regular contact.

What about the future?

Where children live will still depend on what is in their best interests. If it's going to be bad for a child to remain where they are and miss out on an opportunities by living in another State, then the Court might agree that this is the most important consideration. If it's in the best interests of the child to have contact with both parents and stay where they are, that might be enforced. In other words, each case will be judged on its own circumstances.

What is certain is that the court will always do what’s best for the child, even if that means one parent doesn’t get to regularly see the child. This isn’t really against the spirit of the 1996 changes to the Family Law Act, because the court will always want to look carefully at the reasons for the proposed shift. Maybe the changes to the law are really about principles – in principle it is usually best for the child that they regularly see both parents. But as with most things in the Family Law Act, it is the practical effect on the child that is always most important.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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