U v U — [2002] HCA 36 (Australian High Court on Relocation + Best Interests)¶

TL;DR. High Court of Australia 5-2 decision on the principles governing relocation applications — when one parent seeks to move the child away from the other parent's effective reach. The Court rejected a presumption against relocation and held that the best-interests-of-the-child analysis under the Family Law Act remains the sole determinative test. This is the foundational Australian authority for PA-context relocation cases (a common alienation escalation pattern).

Maintained by Alan Markson · Last reviewed: 2026-05-16 · License: CC BY 4.0

Citation¶

U v U [2002] HCA 36; (2002) 211 CLR 238

Holding¶

The High Court held:

No presumption either way — neither a presumption in favor of nor against relocation; the test is open-ended best-interests
Best interests under s60CC governs (Family Law Act 1975 — see case-law/australia/family-law-act-s60cc.md)
Court must weigh the proposed move's specific consequences — not apply a general rule
The child's relationship with the non-relocating parent is a primary factor — explicitly named
Relocation can be refused even when proposed for legitimate reasons (new job, family support, etc.) if the cost to the child's relationship with the other parent is too high

Justice Kirby (minority): would have applied a stronger pro-mobility presumption. Majority disagreed and centered child-relationship preservation.

Significance for PA cases¶

Relocation is a classic PA escalation pattern:

Alienator proposes move ("for work" / "to be near family")
Distance + difficulty creates new opportunities for obstruction
The targeted parent's already-strained contact becomes effectively eliminated
Coached child statements may be used to support the move

U v U gives Australian family courts the doctrinal foundation to refuse relocation when the cost to the parent-child relationship is too high. Combined with the post-2024 Family Law Act amendments and s60CC's safety-first considerations, the Australian framework is now strong for targeted parents resisting alienation-motivated relocation.

Bondelmonte v Bondelmonte [2017] HCA 8 further clarified that children's stated preferences in relocation contexts cannot be the sole determinative factor — consistent with the international convergence on investigate the source of stated wishes (case-law/echr/solarino-v-italy-2017.md, case-law/germany/bgh-xii-zb-565-2018.md, case-law/france/cass-civ-1ere-22-mars-2023.md).

The combined Australian doctrine:

Authority	Contribution
Goode & Goode [2006] FamCA 1346	Pre-2024 best-interests architecture
U v U [2002] HCA 36	No presumption; best-interests-centered; relationship-preservation primary
Bondelmonte v Bondelmonte [2017] HCA 8	Child preferences cannot solely determine
Family Law Act s60CC (post-2024)	Modern statutory framework

Practical use¶

Sample Australian motion language:

Per U v U [2002] HCA 36, the Court is respectfully asked to assess the proposed relocation under the open-ended best-interests-of-the-child test under Family Law Act s60CC, with particular weight to the explicitly named primary factor: the child's relationship with the non-relocating parent. The documented pattern of alienating behaviors by the relocating parent — per Baker's 8 indicators — substantially elevates the risk that the proposed move would effectively terminate the targeted parent's contact. Per Bondelmonte v Bondelmonte [2017] HCA 8, the child's stated preferences may not be the sole basis for the decision when those preferences appear formed under alienating influence.

Citing posts¶

#	Post
17	https://www.antialienate.com/blog/pa-vs-estrangement-courts
26	https://www.antialienate.com/blog/international-parental-kidnapping
58	https://www.antialienate.com/blog/international-custody-battles

Primary source¶

AustLII: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2002/36.html
High Court of Australia: https://www.hcourt.gov.au

Disclaimer¶

Wiki entry, not legal advice.

CC BY 4.0 · antialienate.com