FAMILY COURT OF AUSTRALIA
CHAPMAN & CHAPMAN [2014] FamCA 70
FAMILY LAW – CHILDREN – Best Interests – Family Violence – Where the presumption of equal shared parental responsibility is rebutted – Where there was ongoing violence perpetrated by the father against the mother – Where the children witnessed the father’s violent behaviour – With whom the child spends time – Where it is in the children’s best interest not to spend any time with the father – Where the father is permitted to send cards, letters or gifts on special occasions.
FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable – Contributions – Where the mother made significant contributions to the care and welfare of the father’s children from a previous relationship – Superannuation – Where an order for a superannuation split is appropriate.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75(2), 79
Family Law Rules 2004 (Cth) r 19.04
Domestic and Family Violence Protection Act 1989 (Qld)
Bevan & Bevan [2013] FamCAFC 116
Bowe & Bateman [2013] FamCA 253
Prince & Walsh [2012] FamCA 275
Stanford & Stanford (2012) 247 CLR 108
APPLICANT: Ms Chapman
RESPONDENT: Mr Chapman
INDEPENDENT CHILDREN’S LAWYER: Stephen Richard Page
FILE NUMBER: BRC 10215 of 2010
DATE DELIVERED: 14 February 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 9, 10, 11, 12 July and 12 & 13 November 2012 REPRESENTATION
SOLICITOR FOR THE APPLICANT: Ms Awyzio
DA Family Lawyers
COUNSEL FOR THE RESPONDENT: Ms Hawkshaw
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: The Hon Mr Foley
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Lawyers
Orders
Parenting Orders
(1)That B, born … October 2007 and L, born … February 2009, (“the children”) live with the mother.
(2)That the mother has sole parental responsibility for the children.
(3)That the father shall be entitled to send letters, cards or gifts to the children at Christmas time, Easter time and for their birthdays to the address of the mother’s parents or any other address that the mother shall, at her discretion, provide the father with and the mother shall, at her discretion, give those to the children.
(4)That the mother shall take all reasonable steps to ensure that the children are permitted to communicate with the father by letters, cards or other written communication and she shall ensure that such communication as they may choose to write to the father is forwarded to the father.
(5)That the mother shall ensure that she speaks of the father and his family, parents and friends respectfully and refrains from denigrating any of those people whenever she is speaking to or within the hearing of the children and that she uses her best endeavours to ensure that others do not denigrate or insult the father and his family, parents and friends in the presence of or hearing of the children.
(6)That the father is restrained from attending within 1 kilometre of:
(a)The home of the mother and children; and
(b)The day…
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CaseChat Overview and Summary
The primary legal issues before the court were: firstly, whether the presumption of equal shared parental responsibility should be rebutted due to ongoing family violence perpetrated by the father against the mother, and the children witnessing this behaviour; and secondly, how the parties' property should be divided in a just and equitable manner, considering the mother's significant contributions to the care of the father's children from a previous relationship and the appropriate treatment of superannuation interests.
Forrest J found that the presumption of equal shared parental responsibility was rebutted due to the father's violence and the children's exposure to it, concluding that it was in the children's best interests to live with the mother and for her to have sole parental responsibility. The court applied the principles of the *Family Law Act 1975* concerning the best interests of the child, particularly in circumstances involving family violence. In relation to property, the court ordered a significant division of joint assets, including a substantial payment from the husband to the wife and a split of the husband's superannuation interest in the parties' self-managed fund, acknowledging the wife's contributions.
The court made detailed parenting orders, including that the children live with the mother and she has sole parental responsibility, with limited communication rights for the father and significant restraining orders against him. Property adjustment orders were made to divide joint bank accounts, a property, and superannuation interests, with specific provisions for the transfer of assets and indemnities for debts. The wife's application for spousal maintenance was dismissed.
Orders
Orders of the court
Parenting Orders
(1) That B, born … October 2007 and L, born … February 2009, (“the children”) live with the mother.
(2) That the mother has sole parental responsibility for the children.
(3) That the father shall be entitled to send letters, cards or gifts to the children at Christmas time, Easter time and for their birthdays to the address of the mother’s parents or any other address that the mother shall, at her discretion, provide the father with and the mother shall, at her discretion, give those to the children.
(4) That the mother shall take all reasonable steps to ensure that the children are permitted to communicate with the father by letters, cards or other written communication and she shall ensure that such communication as they may choose to write to the father is forwarded to the father.
(5) That the mother shall ensure that she speaks of the father and his family, parents and friends respectfully and refrains from denigrating any of those people whenever she is speaking to or within the hearing of the children and that she uses her best endeavours to ensure that others do not denigrate or insult the father and his family, parents and friends in the presence of or hearing of the children.
(6) That the father is restrained from attending within 1 kilometre of:
(a) The home of the mother and children; and
(b) The day care centres and/or schools, including before/after school care and vacation care, at which the children are enrolled; and
(c) Any extracurricular, sporting or other organised activities for the children at public venues; and
(d) Any future places of employment of the mother or the children; and
(e) Any TAFE, University or education institution attended by the mother.
(7) That the children shall only spend time with the father as may be agreed between the mother and the father.
(8) That the father is also restrained from harassing the mother in writing, by telephone or any other electronic form.
(9) That the mother shall, at the end of each year, send to the father copies of each of the school reports received by her in respect of the children and copies of any school photographs she has obtained in respect of the children during the course of the preceding year and any other information she considers it appropriate and reasonable to provide to the father about the children, their growth and development.
(10) The Independent Children’s Lawyer is discharged.
Property Adjustment orders
(11) That as soon as practicable upon the making of these Orders, the husband and the wife do all things necessary to cause the sum of approximately $185,000 held in an ANZ joint offset account to be paid to the wife and the interest, if any, earned on the amount that was held in that account since the conclusion of the trial, if it has accumulated in the account, to be paid to the wife as to 56 per cent of it and to the husband as to 44 per cent of it and the account to be closed.
(12) That on or before 28 March 2014 the husband shall pay to the wife, by payment to the wife’s solicitors’ trust account, the sum of $83,133 and shall cause the wife to be discharged and released from any and all liability to the ANZ Bank in respect of any debt secured by mortgage registered against the real property situated at Property 2, C Street, Suburb D (“the Suburb D property”).
(13) That upon compliance by the husband with the obligations imposed upon him by Order (12) hereof, the wife shall surrender to the husband all right, title and interest in the Suburb D property.
(14) That in the event of default by the husband in respect of his obligations pursuant to Order (12) hereof, the Suburb D property shall be sold by private treaty or public auction before 30 June 2014 with any of the sum of $83,133 that remains unpaid after 28 March 2014 plus interest on that sum from 28 March 2014 calculated pursuant to the provisions of the Family Court Rules 2004 to be paid to the wife on settlement of its sale.
(15) That the wife shall retain as her sole property:
(a) The Toyota motor car that was in her possession at the conclusion of the trial;
(b) Any furniture, jewellery or other personal property in her possession save for any photographs of the husband that were his at the commencement of the cohabitation of the husband and the wife which shall be returned to the husband forthwith, if not already;
(c) Any money in bank accounts in her sole name.
(16) That save as otherwise provided for in these Orders, the wife shall indemnify the husband and keep him indemnified against any and all liability for any debts, including credit card debt and student debt, incurred in her sole name.
(17) That the wife shall retain as hers absolutely all of her interests in superannuation funds including E Super Fund, F Super Fund, G Super Fund and the parties’ self-managed I Super Fund.
(18) That pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the parties’ self-managed I Super Fund, the Wife shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these orders, in the sum of $163,730 and that there be a corresponding reduction in the entitlement the husband would have had in the I Super Fund but for this order.
(19) That for the purposes of Order (18) of these Orders, the operative time is four business days from the service of these Orders on the trustee/s of the I Super Fund.
(20) That contemporaneous with the receipt by the wife of the cash payment referred to in Order (12) hereof, the husband and wife each do all necessary acts and sign all necessary documents so as to cause:
(a) the wife’s member benefit entitlements in the I Super Fund, including all of that amount split to her from the husband’s interest in that fund pursuant to these Orders, to be determined (with the assistance of expert advice if necessary), and then to be rolled out into a fund of the Wife’s election;
(b) the removal and/or replacement of the wife as a member and as a director or secretary of any company that is trustee of the I Super Fund;
(c) the resignation and removal of the wife as a trustee of the Chapman Trust and the surrender by the wife of any interest in that trust.
(21) That other than as already provided for in these Orders, the husband shall retain as his sole property:
(a) Any furniture and other personal property in his possession in addition to any photographs that are delivered to him by the wife pursuant to these Orders;
(b) Any money in bank accounts in his own name;
(c) All of his shares in Chapman Pty Ltd and in I Pty Ltd;
(d) His interest in the Chapman Trust;
(e) Any motor car, boat, boat trailer, and tools in his possession.
(22) That subject to the superannuation splitting Order made in these Orders, the husband shall retain as his absolutely all of his interests in superannuation funds, including H Super Fund and the parties’ self-managed I Super Fund.
(23) That the husband shall indemnify the wife and keep her indemnified against any and all liability for any debts, including credit card debts, incurred in his sole name and for any debt of the wife to the Chapman Trust, to Chapman Pty Ltd, to I Pty Ltd or any debt of the wife incurred in any way through involvement in any of those companies or the Chapman Trust, including any unpaid tax liability incurred by the wife in respect of involvement by her in any of those companies or the trust, including in respect of any distribution of trust income to her as a discretionary beneficiary of that trust but not limited thereto.
(24) That in the event that any party to these Orders refuses or neglects to comply with any or all of the provisions of these Orders, the Registrar or a Duty Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to section 106A of the Family Law Act, to execute all deeds and documents in the name of the husband and/or the wife and to do all acts and things necessary to give validity and operation to these orders.
(25) That the wife’s application for lump sum spousal maintenance is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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