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Family court decision in B v B

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— attorney- General AND

MINISTER FOR JUSTICE The H o n . Daryl W illiams am qc mp

July 15,1997 303


The issue before the Full Court of the Family Court in this case was whether, if the primary care-giver relocated, the children would continue to reside with her.

I intervened on behalf of the Commonwealth but not to support either party. My purpose was to make submissions on behalf of the Commonwealth about how the recent reforms should be interpreted by the Court.

Recent legislative changes emphasise that the best interests of the child must be the focus of decisions relating to children and that a child has a right to know and be cared for by both parents. The Court has accepted the importance of the recent changes and the central arguments I advanced on behalf of the Commonwealth.

What is in the best interest of the child will vary from case to case. It is, therefore, unhelpful to portray the decision as setting down a general rule in relocation cases.

As the Court recognised, many of the aims of the legislative changes are long-term and educative.

Relocation cases present the court with a difficult balancing task. The changes to the Act are designed to make it easier for parents to make their own decisions on parenting arrangements for their children when their relationships break down.

In line with the Commonwealth submissions, the Full Court acknowledged that the focus of the reforms is not on the rights of parents but on their responsibilities. Those responsibilities are determined by reference to what is best for the child.

M edia contact: Nicholas Harford (06) 277 7300


B and B: Family Law Reform Act 1995

What the decision does not do

• The decision does not set a rule that automatically allows parents to relocate with their children.

Instead, it emphasises that each case must be decided on its particular merits, with the best interests of the particular children as the paramount consideration.

• The decision does not focus on the interests of one parent over the interests of the children or the other parent.

It takes into account, as one of many factors, the effect of not being allowed to move and remarry on the ability of the parent with whom the children live to parent, because this will affect the children. It clearly states that while freedom of movement is an important factor in relocation cases, it is subject to the best

interests of the child, and must give way if the best interests of the child so require.

• The decision does not mean that the principles and objects of the new Part VII of the Family Law Act have no effect.

The Court has recognised that the objects and principles provide guidance to it in determining children’s best interests. The objects and principles, the legislative expression of the concept of parental responsibility, the new forms of orders, and the structure of the new Part VII are considered by the Court to be aimed at underlining the shared responsibility of parents and avoiding unnecessary imbalances between parents. The reforms give the Court a wider

range of orders, allowing it to tailor its intervention to the requirements of the individual case.

• The decision does not undermine the reforms, or indicate bias in favour of women.

The Court has clearly expressed that it sees the reforms as providing a new norm for orders about children, where residence/residence, or residence/contact orders are made, and both parents continue to have parental responsibility for their children. It is often not practical or in children’s interests for their time to be spent equally with both parents. But orders for residence/residence in particular

will clearly show that one parent is not intended or considered to have a lesser role simply because it is not possible for the children to live with her or him all or most of the time.


• The decision does not deny children continued or meaningful contact with both parents.

The Court supported the principle that regular contact with both parents is important to children’s welfare. While it is an important principle it is one of many factors that must be considered in deciding what arrangements will be in the best interests of the particular child in the individual circumstances of the

case. The children’s relationship with both parents, the amount of contact that they would be able to have in future with a parent if they move away from that parent, and how this would affect their relationship with that parent are all

important factors that must be considered carefully.

15 July 1997


Implications of the decision of the Full Court of the Family Court in B And B delivered on July 9 1997.

B and B: Family Law Reform Act 1995

Children’s best interests come before those of either parent

The recent decision of the Full Court of the Family Court dismissing a father’s appeal against orders allowing his ex-wife to move from Cairns to Bendigo with their 2 children has excited media interest, and been strongly criticised by some sections of the community.

Much of the criticism has been based solely on the result in this particular case. However, the significance of this case is not that this particular mother was permitted to relocate with her children.

The case is important because it is the first time that the Full Court has fully considered the interpretation of key sections of the Family Law Reform Act 1995 which inserted a new Part VII in the Family Law Act 1975. The Court took the opportunity to consider and set out its views on a range of issues about the

interpretation and effect of the new Part VII, which came into effect on 11 June 1996.

The Court recognised the importance of the objects and principles set out in section 60B of the Act. This section represents a deliberate statement by the Parliament of the objects and principles which the court must apply in

proceedings under Part VII.

That the best interests of the child are the paramount consideration for the Court in making parenting orders was reaffirmed by the Court. The principle which states that children have a right of contact, on a regular basis, with both their

parents and with other people significant to their care, welfare and development was accepted by the Court as providing guidance to it in determining the child’s best interests. The Court considered that this principle “emphasises the desirability of contact, and “regular” carries with it a clear understanding that it

should also be as frequent as is appropriate and by the various means which are considered to be in the child’s best interests”.

The Court accepted that the emphasis of the new provisions, particularly the concept of parental responsibility, is on “the continuance of responsibility independently of the status of the parental relationship”.


The former custody/access regime automatically provided a custodial parent with rights to decide day to day matters. The Court considered that one of the “fundamental” differences between that former regime and the new provisions is if only residence and contact orders are made this leaves all other aspects of parental responsibility shared by both parents. The Court stated that the

structure of the Act indicates that residence and contact orders are the norm, noting that a parent who wishes to alter this shared responsibility will have to apply for a specific issues order. Where the best interests of the child require,

some or all parental responsibility can be allocated to one parent, such as where there is a need to protect the child from abuse or violence.

The Court considered that an aim of the reforms, and particularly of the new residence, contact and specific issues orders is “to underline the shared responsibility of parents and to avoid, where it is unnecessary to do so, the apparent imbalance which was thought to arise from the custody/access regime”.

Importantly, the Court stated that there are many cases where residence/residence orders (where an order provides for separate residence with each parent) rather than residence/contact orders are desirable, as they reinforce “the shared parenting concept contained in the new legislation.” A

residence/contact order should not be seen as “a second best option”, but should be used “in circumstances where the contact is of relatively short duration, particularly where there is no overnight aspect”.

The Full Court has in this case given guidance on the approach to be taken to decisions about children under the new Part VII. This guidance will help parents, those who assist them in resolving their differences about arrangements for their children, and judges who must make decisions for them when parents are unable to reach agreement. The Full Court has clarified that it is the children’s best

interests which must determine the outcome, not the rights or interests of either parent.

In particular, the Court has stressed that decisions of the Court are not based on general notions of “children’s best interests”, but must be made in the best interests of the particular child in the particular circumstances before it, in light of

the guidance provided by the objects and principles of Part VII, and the matters set out in section 68F. These matters include any wishes of the child including an expressed preference to continue to live with a particular parent.

The new Part VII does not set fixed or general rules which provide the solution to individual cases. However, the Court stated that “[wjhere there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable”.

This approach, however, does not override the need to make orders which achieve the best possible result for the children in each individual case.

When parents are unable to resolve their differences about arrangements for their children, any decision by the Court will represent to some extent a compromise and a balancing of many factors and interests. Even where both parents are genuinely seeking to do what is best for their children, their views of

how to do this may differ. In many, if not most, cases where parents cannot agree and the Family Court is required to make decisions for them, the arrangements will not be the perfect or the only solution. Clearly there are situations where no solution will address all the needs of the children and their parents. The Family Court must consider the facts of each individual case, and tailor a solution which will promote the best interests of the particular children to the greatest possible extent.


15 July 1997