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
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,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.