U v U [2002] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

U APPELLANT

AND

U RESPONDENT

U v U

[2002] HCA 36

5 September 2002

S256/2001

ORDER

Appeal dismissed.

On appeal from the Family Court of Australia

Representation:

M D Broun QC for the appellant (instructed by Russell McLelland Brown)

P L G Brereton SC with E T Boyle for the respondent (instructed by James Richardson)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

U v U

Family law – Children – Parenting orders – Residence orders – Contact orders – Place of residence of child when one parent wishes to relocate to another country – Proposals of parents about residence of child of marriage and contact with child – Wife's wish to return to country of origin – Wife applies for permission to leave Australia with child – Whether wife should be permitted to remove child from Australia – Wife acknowledged that she would remain in Australia if her return to her place of origin would result in order for child to reside with father – Best interests of child paramount consideration.

Family Court – Practice and Procedure – Children – Parenting orders – Residence orders – Contact orders – Proposals of parents – Whether powers or discretion of Court confined by proposals of parents.

Family Law Act 1975 (Cth), s 65E.

1. GLEESON CJ. I agree that the appeal should be dismissed for the reasons given by Gummow and Callinan JJ. I also agree with the observations of Hayne J. 2. GAUDRON J. The appellant is the mother of young daughter, N, who was born in Australia in March 1994 and who is an Australian citizen. The respondent is N's father. Both parents were born in Mumbai, India, where they married in August 1989. At the date of their marriage, the father was an Australian citizen resident in this country. He returned to Australia shortly after the marriage and the mother came to Australia a few months later. The mother is not an Australian citizen, but has permanent resident status. 3. In July 1995, the mother left the matrimonial home and took her daughter to Mumbai without prior notice to her husband. However, she left a note for him informing him of her actions and made contact with him after her arrival. N's father travelled to Mumbai in August of that year and commenced proceedings for her custody. Subsequently, on 8 March 1996, the following consent orders were made by the Family Court at Bandra, Mumbai: