Carter & Hicks

Case [2022] FedCFamC2F 202


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Carter & Hicks [2022] FedCFamC2F 202

File number(s): LNC 906 of 2020
Judgment of: JUDGE TURNBULL
Date of judgment: 2 March 2022
Catchwords:  FAMILY LAW – PARENTING – relocation – unilateral relocation – family violence – social isolation – where children now reside in South Australia with the mother – where father remains resident in Tasmania – where the parties have maintained daily video calls – where parties do not have sufficient funds for frequent interstate travel – application for injunction preventing the mother from bringing the children into contact with their maternal grandfather
Legislation:

 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65DAA

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited:  AMS & AIF [1999] HCA 26; 199 CLR 160
Bennett & Bennett [2001] FamCA 462
Blatch v Archer (1774) 98 ER 969
Bondelmonte & Bondelmonte [2017] HCA 8; 259 CLR 662
Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336
CDJ & VAJ (No 1) [1998] HCA 67; 197 CLR 172
Cole v Whitfield [1988] HCA 18; 165 CLR 360
Collu & Rinaldo [2010] FamCAFC 53
Dundas & Blake [2013] FamCAFC 133
Fitzroy & Fitzroy [2009] FamCA 954
Flanagan & Handcock [2000] FamCA 150
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Groth & Banks [2017] FamCA 3
Hill & Weston [2021] FedCFamC1F 174
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Koyroyshs & Koyroyshs [2020] FamCA 626
Lavell & Lavell [2012] FamCA 34
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4; 240 CLR 461
Robertson & Sento [2009] FamCAFC 49
Shalhoub v Buchanan [2004] NSWSC 99
Tabac & Kelmer [2016] FCCA 1937
U & U [2002] HCA 36; 211 CLR 238
Withers & Russell [2016] FamCA 793
Wordsworth & Wordsworth [2021] FedCFamC1A 28
Other materials: Explanatory Memorandum, Family Law (Shared Parental Responsibility) Bill 2005 (Cth)
Division: Division 2 Family Law
Number of paragraphs: 295
Date of last submission/s: 19 October 2021
Date of hearing: 7 & 19 October 2021
Place: Burnie
Counsel for the Applicant: Mr J Petersen
Solicitor for the Applicant: Petersen Legal
Counsel for the Respondent:  Ms C Henderson
Solicitor for the Respondent: Walker Henderson Lawyers

ORDERS

LNC 906 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CARTER

Applicant

AND:

MS HICKS

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

2 MARCH 2022

THE COURT ORDERS THAT:

1.Ms Hicks (‘the Mother’) and Mr Carter (‘the Father’) have equal shared parental responsibility for X born in 2015, Y born in 2017, and Z born in 2019 (‘the children’).

THE COURT FURTHER ORDERS THAT, WHILST THE FATHER LIVES IN TASMANIA:

2.The children live with the Mother.

3.The children spend time with the Father in Tasmania as follows:

(a)for the first seven (7) nights of the children’s first,…

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Carter & Hicks [2022] FedCFamC2F 202
Case
[2022] FedCFamC2F 202
Decision Date

CaseChat Overview and Summary

This case concerns the parenting arrangements for three young children, X, Y and Z, following the separation of their parents, Carter and Hicks. Carter sought orders that Hicks return to Tasmania with the children, and that he spend equal time with them. Hicks opposed Carter's application, arguing that the children should remain in South Australia where they had settled following their unilateral relocation. In the alternative, Hicks proposed that the children spend time with Carter during school holidays and on weekends. Carter also sought an injunction preventing Hicks from bringing the children into contact with Hicks' father and uncle, and Hicks' former partner. The Court found that it was in the children's best interests to remain in South Australia and for them to spend time with Carter during school holidays and on weekends. The Court further found that it was in the children's best interests for them to spend equal time with Carter if he relocated to South Australia within two years. The Court rejected Carter's application for an injunction against Hicks' family members, finding that there was insufficient evidence to support such an order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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