AMS v AIF
High Court of Australia · 1999
AMS v AIF (1999) 199 CLR 160
A mother with custody wanted to move to Darwin. The court asked her for compelling reasons — and that question was itself the error.
Two things have settled since 1999, pulling in opposite directions.
ON THE CONSTITUTIONAL SIDE the criterion AMS articulated has hardened rather than lapsed: HAYNE J in APLA refers to 'the test stated in the joint reasons in AMS v AIF' and says 'the principles stated in AMS v AIF should now be accepted as the applicable doctrine'. So the fact that AMS found it unnecessary to decide the mother's challenge does not reduce its s 92 formulation to an open question.
ON THE STATUTORY SIDE the framework has moved twice: a presumption of equal shared parental responsibility was introduced and then removed with effect from 6 May 2024, and s 65DAAA, inserted by the Family Law Amendment Act 2023, now governs reconsideration of a final parenting order -- sub-s (1) directing attention to a significant change in circumstances and the child's best interests, and sub-s (3) permitting reconsideration by agreement or consent regardless. What survives from AMS is the diagnosis of the error, not the provisions it was decided under.
What happened?
A mother who had custody of her child wanted to move from Perth to Darwin. The orders below left her free to move only if the child's principal place of residence stayed in the Perth metropolitan area, and the case was approached by asking whether she should be "permitted to move" — with the trial judge proceeding on the basis that she had to show compelling reasons.
What did the Court decide?
That was an error of law. The statute asks what is in the child's best interests on the facts, and a requirement that the custodial parent justify departing from an assumed position is not that question. The constitutional arguments were left undecided as unnecessary, but the Court directed that on rehearing the Family Court have regard to the need not to impose on freedom of interstate intercourse an impediment greater than reasonably required to achieve the objects of the legislation.
Proposition
What is the principle?
Requiring a custodial parent to show "compelling reasons" before relocating within Australia is an error of law: the statutory question is the child's best interests on the particular facts, not whether a parent has justified departing from an assumed default.
Why does this case matter?
Its reach is narrower than it first appears, and the narrowness is the useful part. It is tempting to read it as saying that any reasoning which starts from the existing arrangement is defective. That is not the law, and the statute now says so directly: s 65DAAA, inserted in 2023, directs a court reconsidering a final parenting order to a significant change in circumstances and the child's best interests — while sub-s (3) lets the parties agree to a reconsideration regardless. Stability is a legitimate consideration; what the case identifies is a particular way of turning it into a hurdle.
The constitutional material needs care in the other direction, because the obvious inference is wrong. Leaving a challenge undecided sounds like leaving the law unsettled, and here it did not: the criterion the Court articulated was later treated as doctrine, which the note on later authority below sets out. Distinguish the outcome that was not reached from the standard that was stated — they have had very different afterlives.
Note too how far the statutory landscape has moved since 1999. A presumption of equal shared parental responsibility was later introduced and then removed with effect from 6 May 2024, so the provisions this case was decided under are not those in force. What survives is the diagnosis of the error, not the statutory detail.
Exam and application relevance
Point to the hurdle actually imposed rather than to the vocabulary used: a requirement that a parent show compelling reasons is the error this case names, and the word "permitted" on its own is not. Where a final order is being reconsidered, work from s 65DAAA rather than from this case, and note that its sub-s (3) leaves room for reconsideration by agreement. Where relocation crosses a State border, raise the impediment direction as guidance the Court gave, not as a constitutional test it settled. And argue from the provisions currently in force.
Check your understanding
Nobody held that the mother could not move, and a court may properly consider whether circumstances have changed. So what exactly went wrong here?