Divorced mothers deserve better

September 13 2002 Sydney Morning Herald

No cases are more difficult to decide fairly than disputes over custody. A recent High Court decision has shown that women, even when they are granted custody, may be disadvantaged. The problem arises when the so-called "residence parent" (the one with custody) wants to relocate far away from the other parent.

The case, known as UvU, concerns an Indian-born couple with a nine-year-old Sydney-born daughter. The husband has lived in Australia since 1973 and the wife moved here following their marriage in India in 1989. They were both university-educated, and the husband is well established in professional life here. However, after the divorce, the wife wished to return to India to be near her family and because India offered better employment prospects. The mother, who had custody, asked the Family Court to allow her and her child to live in India. The father countered with a request for custody so he and his daughter could live in Australia.

The Family Court, however, chose a third option: the mother retained custody but was obliged to stay in the Sydney-Illawarra area. The court made this ruling after the mother had agreed during cross-examination that if she had to choose between going to India without her child and staying here with her daughter, she would choose the latter. (What else would she say?) The court seized on this as a compromise. The mother has since failed in appeals to full benches of the Family Court and then the High Court and is now trapped in what she calls "a living death".

The High Court appeal was lost five-two, with justices Gaudron and Kirby dissenting. They both thought the Family Court had been too ready to find the compromise and should have more thoroughly examined the other options. Justice Gaudron said any mother who "has to choose between relocation and having her child live with her ... will choose ... her child". So the mother "runs the risk that her interests will not be properly taken into account". Justice Kirby noted that in about 84 per cent of single-parent families the mother is the residence parent. Accordingly, he said, it will usually be the ex-wife who risks being "confined ... in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and re-parenting". She would be the one "controlled by court orders" so that the "inconvenience to the husband is minimised".

Lawyers say that cases like UvU often result in drawn-out court battles. In a substantial minority of such cases, the residence parent, like the mother in this case, will lose the bid to relocate. Australia certainly does not have the strong presumption evident in British cases that the residence parent should have freedom of movement unless the non-residence parent can clearly show it is detrimental to the child. The dissenting High Court judges' comments in UvU should prompt a review of this area of family law. If it finds that the freedoms of divorced women are consistently subordinated to those of their ex-husbands, the Family Law Act should be amended.