Hopper & Hopper

Case [2016] FCCA 84


FEDERAL CIRCUIT COURT OF AUSTRALIA

HOPPER & HOPPER [2016] FCCA 84

Catchwords:
FAMILY LAW – Final parenting – competing parenting applications – future care arrangements – spend time with arrangements – complete termination of the children’s relationship with their father since separation of the parties – conceded family violence on behalf of the father – children exposed to verbal altercations and conflict between the parents – consideration of unacceptable risk – where the children’s views and recollections of their father have been influenced by the mother’s – resumption of time between the children and the father.

FAMILY LAW – Property adjustment – competing property adjustment applications – contributions – superannuation – where the husband seeks to preserve his post separation contributions to superannuation – where the preservation of contributions to superannuation post separation cannot be mathematically calculated and settled authority suggests that such calculation would be in error – finding of equality of contribution – assessment of section 75(2) factors – adjustment made in favour of the wife.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAA(5), 65DAC, 65F, 67ZBB, 68B, 69ZN, 69ZW, 75(2), 90MT(1)(a)
Family Law (Family Dispute Resolution Practitioners) Regulation 2008, Regulation 25
Family Violence Best Practice Principles Version 3.2 – December 2015
Evidence Act 1995, ss.69, 140
Children and Young Persons (Care and Protection) Act 1998
Family Law (Superannuation) Regulations 2001

Jones v National Coal Board (1957) 2 QB 55, 63
McQuire v Western Morning News [1903] 2 KB 100 (CA)
R v Blaue 16 Cr App R 271 (1975)
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
Re F Litigation in Person Guidelines (2001) FLC 93-072
Makita & Sprowles (2001) 52 NSWLR 705
Aytugrul v The Queen [2012] HCA 15
Cameron & Walker (2010) FLC 93-445

Amador & Amador (2009) 43 Fam LR 268
Jones & Dunkel (1959) 101 CLR 298
M & M [1988] HCA 68
B & B (1993) FLC 92-357
U & U [2002] FLC 93-112

Johnson & Page [2007] FamCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336
A v A (1976) V.R. 298
Leveque v Leveque (1983) 54 B.C.L.R 164
Re G (a minor) (1987) 1 W.L.R. 1461
W & W (abuse allegations: unacceptable risk) (2005) FLC 93-235
N & S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
S & S [1994] NZFLR 657
M v Y [1994] NZFLR 1
Potter v Potter [2007] FamCA 350
Stanford & Stanford [2012] HCA 52
Burgoyne & Burgoyne (1978) FLC 90-467

West & Green (1993) FLC 92-395

Hickey & Hickey [2003] FamCA 395
Kowaliw & Kowaliw (1981) FLC 91-092

Clauson & Clauson (1995) FLC 92-595
Manolis & Manolis(No.2)[2011] FamCAFC 105

Other Articles Cited:

Finkelstein J “The Adversarial System and the Search for Truth”, (2011) Vol 37 No 1, Monash University Law Review

Douglas Adams, “Mostly Harmless (Hitchkikers Guide to the Galaxy), 1993 Tor UK

Dimensions, Dynamics and Impact of Family Violence, 2010, Australian Institute of…

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AGLC
Hopper & Hopper [2016] FCCA 84
Case
[2016] FCCA 84
Decision Date

CaseChat Overview and Summary

In *Hopper & Hopper*, heard by Judge Harman, the court considered competing parenting and property adjustment applications between Ms Hopper and Mr Hopper concerning their children, X and Y, and their marital assets. The central dispute in the parenting proceedings involved the future care arrangements for the children, including whether they should resume spending time with their father, Mr Hopper, given the mother's assertion of family violence and the children's exposure to parental conflict. In the property proceedings, the parties contested the division of their assets, with the husband seeking to preserve his post-separation superannuation contributions.

The legal issues before the court were twofold. Firstly, in relation to parenting, the court was required to determine whether it was in the best interests of the children, X and Y, for them to resume spending time with their father, Mr Hopper, and to assess the risk associated with such an arrangement, particularly in light of conceded family violence and the children's exposure to parental conflict. Secondly, concerning property adjustment, the court had to determine the appropriate division of the parties' assets, including how to treat the husband's post-separation superannuation contributions and whether to make any adjustments under section 75(2) of the *Family Law Act 1975*.

On the parenting matter, the court considered the unacceptable risk posed by the father's conduct and the influence of the mother's views on the children's recollections of their father. The court found that the children should live with their mother and spend time with their father under supervised contact for an initial period. In the property proceedings, the court noted that the preservation of post-separation superannuation contributions could not be mathematically calculated and settled, and found an equality of contribution between the parties. Applying section 75(2) factors, the court made an adjustment in favour of the wife. The orders reflect these findings, granting shared parental responsibility, stipulating that the children live with the mother, and outlining a phased approach to supervised time with the father.

Orders

Orders of the court

1.

Pursuant to section 61C of the Family Law Act 1975, each of the parents, namely, Ms Hopper and Mr Hopper, shall have parental responsibility for their children, X born (omitted) 2007 and Y born (omitted) 2010, at such times as they are in their respective care.

2.

X and Y shall live with their mother.

3.

X and Y shall spend time with their father:

(a) Supervised at the (omitted) Children's Contact Service for a period of 2 months and with respect to same:

(i)

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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