Hopper & Hopper
[2016] FCCA 84
•19 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOPPER & HOPPER | [2016] FCCA 84 |
| Catchwords: 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) |
| Jones v National Coal Board (1957) 2 QB 55, 63 Amador & Amador (2009) 43 Fam LR 268 Johnson & Page [2007] FamCA 1235 West & Green (1993) FLC 92-395 Hickey & Hickey [2003] FamCA 395 Clauson & Clauson (1995) FLC 92-595 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 Social Relations From the AVERT Training package Family Violence Judge Joe Harman, “Should Mediation be the first step in all Family Law Act proceedings?” (2016) 27 ADRR 1 Taylor Nelson Sofres, “Reducing Violence Against Women and Children”, November 2015, Australian Government Department of Social Services Newton, Isaac, “Principia Mathematica Philosophiae Naturalis”, Benjamin Motte 1686 Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 Smythe & Weston, “Financial living standards after divorce: A recent snapshot” Research Paper No. 23 – December 2000, Australian Institute of Family Studies Australian Human Rights Commission Report, “Accumulating poverty? Women’s experiences of inequality over the lifecycle”, (2009) |
| Applicant: | MS HOPPER |
| Respondent: | MR HOPPER |
| File Number: | AYC 247 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 15, 16, 17, 18 December 2015 |
| Date of Last Submission: | 18 December 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 19 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Pogson Cronin |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms Wearne |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Wagga Wagga Family Law |
ORDERS
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.
X and Y shall live with their mother.
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)IT IS NOTED that the parties have already attended intake and assessment;
(ii)It is requested that visits be scheduled to commence as soon as can be accommodated and if possible on a weekly basis;
(b)Thereafter, for 6 occasions on each weekend from 9am until 5pm each Saturday;
(c)Thereafter, for 2 occasions on each alternate weekend from 9am Saturday until 5pm Sunday;
(d)Thereafter, X and Y shall spend time with their father:
(i)On each alternate weekend during school terms from the conclusion of school Friday until 5pm Sunday (extending to Monday in the event of a long weekend or pupil free day) to resume after each school holiday period on the first weekend of each term;
(ii)For half of each school holiday period:
a.For the first half of each school holiday period (from the conclusion of school until 5pm on the middle Sunday) at the conclusions of terms 1, 2, and 3, to commence with the first holiday period following completion of supervised visits pursuant to Order 3(a) above;
b.For the first half of the summer school holidays in 2016-2017 and each alternate year thereafter (and unless agreed between the parents to be from 10am on the first day after school attendance concludes until 5pm 9 January); and
c.For the second half of the summer school holidays in 2017-2018 and each alternate year thereafter (and unless agreed between the parents to be from 10am 9 January until 5pm 27 January or, if the school term commences earlier than 27 January the day before school resumes).
Forthwith and within 48 hours of the making of these Orders, both parents shall do all acts and things necessary to apply to (omitted) Family Care Services for family counselling and (omitted) Family Care are requested to arrange and if possible ensure that the parents are engaged in family counselling prior to the commencement of supervised time pursuant to Order 3(a) above.
Both parents shall sign all service requests and consents and the mother do all acts and things necessary to cause Y and X to attend the next (omitted) Children's Group for 6-8 year olds.
The father shall forthwith do all acts and things necessary to:
(a)Enrol in and attend to completion of a Triple P Parenting Course; and
(b)Re-enrol in anger management counselling with Mr R at Family Care (omitted) or such anger management counselling recommended to him by the Independent Children’s Lawyer.
All changeovers to facilitate Order 3 above shall occur at the (omitted) Children's Contact Service or the children’s school and to facilitate this Order it is noted that precise changeover times prescribed in these Orders may need to be varied to suit the availability of the (omitted) Children's Contact Service and provided that if, for whatever reason, the (omitted) Children's Contact cannot facilitate changeover then changeover shall occur within the foyer of the (omitted) Police Station.
Leave is granted to the Independent Children’s Lawyer to provide copies of:
(a)Ms A's Expert Report dated 9 February 2015 and released 18 February 2015 and the Court’s reasons for decision in this matter to:
(i)Post separation services at (omitted) Family Care;
(ii)Mr R (or such other anger management therapist the father may consult pursuant to Order 6(b));
(iii)The mother’s psychiatrist, Dr S;
(iv)The mother’s psychologist (currently Mr C); and
(v)(omitted) Paediatric Group.
Both parents are authorised by these Orders and each parent shall do all things, sign all documents and give all consents and authorities to enable each parent to obtain from any school that X and Y may attend, information about their progress and welfare, including but not limited to:
(a)Copies of all school reports, awards and information regarding the children’s achievements and activities; and
(b)School photograph order forms so that each parent has the opportunity to order same.
Each parent shall promptly provide to the other in writing:
(a)The names and contact details of any medical, therapeutic or other allied health practitioner upon whom the children or either of them are required to attend; and
(b)Details of any medical, therapeutic or other allied health appointment which the children or either of them are required to attend.
Both parents shall follow the treatment recommendations made by any psychologist, psychiatrist, mental health or allied health practitioner in their respective households.
By consent the mother’s application to relocate the children’s residence to Sydney shall be dismissed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That this Order is binding on the Trustee of the (omitted) Superannuation. (omitted) for member Mr Hopper born (omitted) 1981 member number (omitted):
(a)That the base amount allocated to the Applicant in these proceedings out of the interest of the Respondent in these proceedings in the Fund is a sum of $80,000 of the splittable amount in the Respondent’s Fund;
(b)That pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Respondent in the Fund, the Applicant shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;
(c)That Order 14(b) has effect from the operative time being 4 business days after the date of service of these Orders upon the Trustee of the Fund;
(d)That until such time as the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant:
(i)The Respondent shall provide to the wife not less than 28 days’ notice before such time as he elects to retire from/or take voluntarily retirement and/or for any reason except or become entitled to access in whole or in part his entitlement in the Fund;
(ii)The Respondent shall direct and authorise the Trustee of the Fund to communicate with the Applicant and/or any person authorised by her in writing:
a.To answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund; and
b.To provide to the Applicant and/or her authorised representative a copy of any notice of any application or request of the Respondent which seeks release of the entitlements in the Fund insofar as that release may affect the Applicant’s entitlement in the Fund pursuant to these Orders;
(iii)The Respondent by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her legal personal representatives, the administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders;
(iv)In the event that the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant, each of the parties thereto shall each do all such acts and sign all such documents necessary to facilitate and to implement that rollover.
That within fourteen days of the date of these Orders each party shall do all things and sign all documents necessary to close the (omitted) Bank account in the name of Ms Hopper and Mr Hopper, account number (omitted) and the (omitted) Bank account in the name of Ms Hopper and Mr Hopper, account number (omitted) and to then cause the balance of those accounts at the date of closure to the wife.
Within fourteen days of the date of these Orders each party shall do all things and sign all documents necessary to transfer all funds held in the (omitted) Bank account in the name of Ms Hopper and Mr Hopper as Trustee for X, account number (omitted) to a bank account nominated in writing by the wife and upon such transfer of funds each party shall do all things and sign all such documents necessary to close the account.
Unless otherwise specified in these Orders and except for the purpose of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party is solely entitled to the exclusion of the other to all other property, including choses in action in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of any bank account is to become the property of the party in whose name such bank account exists;
(c)Except as stated in Order 14, each party forgoes any claims they have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner named therein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Hopper & Hopper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 247 of 2013
| MS HOPPER |
Applicant
And
| MR HOPPER |
Respondent
REASONS FOR JUDGMENT
Preamble
It is oft said that a Trial is a means of “getting to the truth”.[1]
[1] See for example LJ Denning Jones v National Coal Board (1957) 2 QB 55, 63 describing the purpose of the Trial and the Judges’ job as being “…to find out the truth, and to do justice according to law”. As regards what the “truth” might objectively be I respectfully concur with Finkelstein J in his excellent Article, “The Adversarial System and the Search for Truth” (2011) Vol 37 No 1, Monash University Law Review, that “…I have no idea how to define the truth. In any event, I doubt the existence of an absolute or objective truth”. Further philosophical discussion of the topics (being both the nature of truth and the efficacy of the Adversarial Trial in arriving at it) are best left for another time and other fora.
In this case and after hearing 4 days of evidence I am confident that I have gotten to the truth. There are two equally plausible and equally authentic versions of the truth co-existing. That reality speaks to the nature of “truth”. The reality is that there is no “absolute or objective truth”.[2]
[2] Ibid, Finkelstein J, “The Adversarial System and the Search for Truth”, (2011) Vol 37 No 1, Monash University Law Review pages 135-144.
As opined by Lee Atwater, “perception is reality”. In similar vein Albert Einstein had expressed that “reality is merely an illusion, albeit a very persistent one”. Reality is something constructed by an individual from the processing of information and interpreted by them.
These concepts are expanded upon and explicated by Douglas Adams[3] as:
Everything you see or hear or experience in any way at all is specific to you. You create a universe by perceiving it, so everything in the universe you perceive is specific to you.
[3] Douglas Adams, “Mostly Harmless (Hitchkikers Guide to the Galaxy), 1993 Tor UK.
A central focus of this case, regrettably so common as to be expected or routine, are allegations of family violence. This case is, perhaps, emblematic of the difficulties in objectively defining or understanding the nature of family violence.
Family violence is experienced. It is perceived. It is personal to those who have experienced it.
An understanding of family violence is not available in a dispassionate or objective sense. An individual’s experience of family violence is not capable of judgment and interpretation by Lord Collin’s “man on the Clapham Omnibus”,[4] (or in this case perhaps the man on the (omitted) bus).
[4] McQuire v Western Morning News [1903] 2 KB 100 (CA) at 109.
Issues of family violence are better understood from the perspective expressed by LJ Lawton in R v Blaue[5] “… Who uses violence on others must take their victims as they find them”. Action can be clearly and objectively defined. The experience of that action and reaction to it is personal to the individual and informed and determined by that individual’s past life experience, beliefs, frailties and myriad other factors.
[5] 16 Cr App R 271 (1975).
The experience of the “victim” is that which must be focused upon and sought to be understood if, as the Court must strive to do, the consequences of family violence are to be understood and made relevant in determining the best interests of children.
Family violence is, in this case, an issue of centrality though not paramountcy.[6] Family violence is an issue that will require substantial discussion. I will turn to that discussion shortly in considering the evidence.
[6] Section 60CA of the Family Law Act 1975 dictates that the best interests of children must, at all times, remain the paramount consideration.
From the outset I must record that a finding as to the occurrence of family violence will be made. Such a finding is inevitable on the evidence. Such a finding is conceded by the father.
However, what is significant with respect to that finding, as I hope will be made clear, is the need to understand family violence in its context, to understand the nature and consequence of family violence within this family and for these children.
The experience, perception and communication of family violence has had very real consequence for each of these parents and for their children. Consequence has extended through the “anchoring” of treatment and therapeutic services provided to Ms Hopper and these children in the reality of family violence as advanced by Ms Hopper to those providing service.
The maxim expounded by LJ Lawton above, that one must “take one’s victim as they find them” has some real application in this case and circuitously links to my opening comment that “perception is reality”.
In this case, the recollection of “perpetrator” and “victim” (though such terminology has inherent problems in this case)[7] varies significantly. I am satisfied that this arises not from deliberate mischief of the parties such as manufacture, embellishment, exaggeration, minimisation or false denial by either party but rather from variance in the receipt and processing of experience by each.
[7] This is particularly so as what is, in fact, done by Mr Hopper as a “perpetrator” is, in many instances, objectively different to that which is perceived by Ms Hopper as the “victim” of Mr Hopper’s actions. I am not satisfied that what Mr Hopper has done is always that which Ms Hopper has believed to have been done and that which she has reacted to. Further, the use of such terminology as “perpetrator” and “victim” has real potential to be unhelpfully seen and adopted as “labelling” of each of these parents in a fashion that may impede their future parenting or parenting relationship or the provision and benefit of therapeutic services.
I am satisfied that each parent is a witness of truth. And yet if that is so how can their recollections be so diverse? How can two entirely conflicted recollections of events, events which are common to each of these parents, permit a finding that each is a “witness of truth”? I am satisfied that the answer lies in perception.
Whilst I will expand upon the findings that I will make with respect to the occurrence of family violence I wish to clearly establish, from the outset, that I do not intend any disservice to Ms Hopper as a witness of truth and as a victim of behaviour conceded by Mr Hopper to have been engaged in by him, in failing to make findings that physical or sexual violence has occurred. As is made clear by the authors of the paper “Dimensions, Dynamics and Impact of Family Violence”:[8]
Family violence involves the abuse of power and control to victimise one partner. This may be done through a range of behaviours that do not necessarily involve physical assault.
[8]Dimensions, Dynamics and Impact of Family Violence, 2010, Australian Institute of Social Relations
I am not satisfied that the evidence allows me to find that physical or sexual violence have occurred. Nor am I satisfied that it is necessary for me to do so. I accept the impact upon Ms Hopper of the behaviours that are conceded by Mr Hopper and that I am satisfied, in any event, that those behaviours and the impact of those behaviours upon Ms Hopper are established on the evidence.
A finding of physical violence is not needed to establish family violence. A finding of physical violence is not needed to make family violence “serious” or “concerning”. Family violence, in its many forms and manifestations, is serious and concerning and requires and deserves an appropriately protective response from the Court.
It is not that Ms Hopper is disbelieved or her evidence rejected. I am satisfied that Ms Hopper’s evidence is authentic and valid. It reflects her experience. Her experience has been, in her words, “torturous”.
It is not that Mr Hopper is disbelieved or his evidence rejected. I am satisfied that Mr Hopper’s evidence is authentic and valid. It reflects his experience. His experience has also been difficult.
Each of these parents has come to their relationship with the other carrying damage and the scars of past experience. Those experiences have been disadvantageous to their development and their functioning. Their lived experience has shaped their thought processes, has created the lens by which they have experienced the world. That past experience has impacted upon the manner by which they have captured, retained, processed and recalled information and experience.
The proceedings
These proceedings involve competing Applications for both parenting and property adjustment Orders.
I propose to deal with and determine the parenting aspect of the proceedings before embarking upon a determination of the property adjustment aspect of the proceedings. That is reflective of the significance placed by each of these parents upon the future care arrangements for their children.
The children whose best interests are the subject of these proceedings are:
a)X born (omitted) 2007; and
b)Y born (omitted) 2010.
The parties to the proceedings are the parents of X and Y, namely, their mother Ms Hopper (who is the Applicant) and their father Mr Hopper (who is the Respondent).
The best interests of X and Y are independently represented by a most competent Independent Children’s Lawyer and Counsel.
The proceedings were commenced by an Application Initiating Proceedings filed on 16 July 2013.
The matter was heard over four days 15 – 18 December 2015.
In total the proceedings were on foot approximately 2 ½ years.
The matter has been heard and determined on a busy regional circuit of the Federal Circuit Court of Australia. There has been no delay occasioned through action or inaction of the parties or either of them nor by the Independent Children’s Lawyer. All that has been necessary to be attended to has been attended to promptly and diligently.
The delay in the ultimate determination of the matter has been occasioned by an absence of resources, such that the matter could not be heard any more quickly even though each party, no doubt, desired that it might have been so and the best interests of these children would have been served by a more expeditious determination.
History of proceedings
Prior to the proceedings being commenced by Ms Hopper, through the filing of her Application Initiating Proceedings 16 July 2013, Mr Hopper attempted to attend Family Dispute Resolution through the (omitted) Family Relationship Centre. A certificate was issued by a Family Dispute Resolution Practitioner (FDRP) confirming that, following a consideration of all relevant matters, Family Dispute Resolution was considered to be inappropriate.
Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulation 2008 requires that an FDRP complete an intake assessment prior to commencing Family Dispute Resolution. The regulation also sets out the matters which must be considered in determining the appropriateness or otherwise of Family Dispute Resolution.
Any cursory examination of that regulation would make clear that this dispute was not suitable for nor amenable to Family Dispute Resolution and the FDRP concerned is to be commended for their prompt and expeditious determination. Regrettably, the majority of parenting cases which are commenced before the Court have not involved the parties attending Family Dispute Resolution prior to proceedings being commenced.[9] In this case there would have been little benefit or utility in Family Dispute Resolution proceeding.
[9] See Judge Joe Harman, “Should Mediation be the first step in all Family Law Act proceedings?” (2016) 27 ADRR 1.
The proceedings first came before the Court 27 August 2013. At that time a number of Orders were made consequent upon the Court’s obligations pursuant to section 65F of the Family Law Act 1975 and, more importantly, section 67ZBB of the Act.
At the first Court event an Independent Children’s Lawyer was appointed. The parties were directed to attend a Child Dispute Conference with a Family Consultant and were also directed to complete an online program The proceedings were otherwise adjourned for Interim Hearing with respect to the parenting aspect of the proceedings and the parties directed to attend a Conciliation Conference to be convened by a Registrar.
At the next Court event a number of Orders were made by consent. Those Orders provided, inter-alia, that X and Y would live with their mother and spend no time with their father. Mr Hopper was, by consent, restrained from removing X and/or Y from any day care centre, preschool or school that the children might attend. Both parties were otherwise required to complete intake processes necessary to enable the (omitted) children’s contact service to undertake an assessment of the suitability of the parties for inclusion within that agencies supervised contact service.
When the proceedings next came before the Court (the parties having, in the intervening period, attended a Conciliation Conference) neither party sought to agitate for further Interim relief and other than the determination of an objection to inspection of material produced on subpoena, nothing of substance occurred.
The objection to subpoena had been filed by the attorneys for Ms Hopper. The objection was on the basis that material produced contained information as to Ms Hopper’s place of residence, which material Ms Hopper did not wish to be disclosed. The objection was resolved (ultimately by consent) through an Order for first inspection by Ms Hopper’s attorneys and permitting them to redact any information which disclosed or would tend to disclose Ms Hopper’s whereabouts.
Without commenting upon the validity of Ms Hopper’s concerns, I must comment that the actions of Ms Hopper’s attorneys were entirely appropriate and represent “Best Practice” in the representation of parties in proceedings involving allegations of family violence. Vigilance as to such matters is appropriate and required. Such vigilance is consistent with the Court’s section 67ZBB obligations and insightful.
The proceedings next came before the Court 27 March 2014 on which date a number of Interim property adjustment Orders were made by consent. In addition, further Orders were made to facilitate completion by the parties of intake with the (omitted) children’s contact service. The proceedings were further adjourned at the request of the parties. It was noted within the Orders that an Interim determination of the matter might be required on the next Court event 9 May 2014.
On 9 May 2014 all Interim Applications and Responses were withdrawn. Importantly, it was noted that a Minute of Orders would be submitted to Chambers to enable a Part 15 Report to be commissioned and so as to allow expert inquiry into and comment upon the myriad of significant issues raised in the proceedings, particularly those relating to allegations of family violence.
Up and until this point both parties were legally represented. The conduct of the proceedings by the attorneys for each party was entirely appropriate. The nature of the allegations raised in the proceedings were such that any Interim determination would have been fraught with difficulty. As has been commented upon by the Full Court on numerous occasions, (including the pivotal cases of Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101) Interim Hearings before busy first instance Trial Courts such as the Federal Circuit Court of Australia are circumscribed processes conducted on limited evidence and impacted by significant demands upon Court time and resources.
The Interim issues that were apparent in this case from the commencement of the proceedings were identical to the issues which would require determination on a Final basis. Without the opportunity to properly explore and test the evidence it is unlikely that any determination permitting of time between X, Y and their father could have been made. It is, in those circumstances, all the more regrettable that the matter has taken a significant time to reach Final Hearing. However, the forensic decisions made by the parties, no doubt based upon and consistent with the advice received by them from their respective legal representatives, have been sensible, prudent and appropriate.
The proceedings next came before the Court 23 September 2014. On that date a further objection to subpoena was addressed (on the same basis and with the same resolution as the prior objection) and Orders commissioning the preparation of the Part 15 Report were made by consent. It had not been possible for a Minute of Consent Orders to be submitted earlier due to difficulties in the determination of funding for the Report. Neither party in these proceedings has access to significant income or property. Whilst Mr Hopper is in paid employment his income is far from substantial. Ms Hopper is dependent on Centrelink for her support. The only significant tangible asset available to the parties was their matrimonial home, which was in the process of being sold and which ultimately, upon sale, left the parties in debt.
The issues raised in the proceedings required the expertise of a Part 15 Report Writer rather than a Family Consultant employed by the Court. Significant issues as to psychological functioning of the parties (both consequent upon and independent of the allegations of family violence) required investigation as well as issues relating to the children’s psychological functioning and possible diagnoses of autism. Regrettably, such Reports cannot be obtained by the Court, save through the assistance of the Legal Aid Commission (by whom the Independent Children’s Lawyer is funded) or through the resources of the parties.
The Part 15 Report was completed in February 2015. When the proceedings came before the Court 4 February 2015 the report was not yet available for release. The Independent Children’s Lawyer, consistent with the diligence that they have demonstrated throughout the conduct of the proceedings, had made enquiries of the Report Writer and was in a position to advise the Court that provision of the Report was imminent. To avoid further delay and disadvantage (to the parties jointly and severally and certainly to the best interests of the children) the matter was listed for Hearing. By that time the impact upon delays arising from the non-replacement of retired Judges was apparent and any further adjournment would have imposed a further delay of up to 12 months.
The matter was listed as a two day fixture. It is through no fault of the parties that the matter has extended across four days of evidence. The matter was heard on a circuit when, as is common practice, matters were over listed at a rate of 600%. Various urgent matters also came before the Court during the circuit week (it being the last sitting week of the Court prior to Christmas). As a consequence of the volume of work listed a portion of each day was consumed in dealing with other business, including calling over the various other matters listed for Hearing and which could not be reached.
By the time of trial Mr Hopper had become self-represented. Mr Hopper is an intelligent and articulate man. He has conducted his affairs before the Court with dignity and good humour. However, it must be acknowledged that Mr Hopper has not been in a position to match the considerable skill and expertise of Counsel for Ms Hopper and the Independent Children’s Lawyer.
Prior to the Trial commencing some time was spent in fulfilling Re F Litigation in Person Guidelines (2001) FLC 93-072 obligations. One cannot help but feel that the explanation of Trial process, rules of evidence and other procedural matters at the commencement of the Trial is perhaps “too little too late”. Regrettably, there is nothing more that can be done by the Court. The Court is not in a position to assist litigants in preparing their Trial material, notwithstanding that the conduct of the case is highly dependent upon the competent preparation and presentation of evidence.
The Independent Children’s Lawyer has, in the above circumstances, been of considerable assistance, (although I make clear that the Independent Children’s Lawyer has, throughout the proceedings, discharged the duties of that office admirably and to a predictably high standard). When one or both parties are self-represented there is an additional burden upon the Independent Children’s Lawyer to ensure the balanced exploration of matters relevant to the children’s best interests. The assistance of the Independent Children’s Lawyer is far more abundant and necessary in those circumstances than might otherwise be the case. Without the assistance of the Independent Children’s Lawyer it would not have been possible for all relevant factual issues to be properly canvassed, explored and addressed and thus, the Court’s ability to properly determine the children’s best interests is undermined.
Before leaving the representation of the parties (and the impact upon the children’s best interests) it is incumbent upon me to also observe that the manner in which Ms Hopper’s case has been conducted has been exemplary. The case is well prepared and well presented. Counsel has engaged with both the Court and the self-represented Mr Hopper with the utmost respect, cordiality, frankness and candour. Whilst such comments should be unnecessary or perhaps made as a matter of course, that regrettably, is not so. The conduct of litigation, as has been undertaken by Ms Hopper’s attorneys and Counsel, permits the Adversarial Trial, within the limitations inherent within its structure, to do the best it can to achieve the lofty goals and ideals espoused by Lord Denning.
The proposals of the parties
The relief sought by each parent, at least as regards parenting arrangements, has been consistent throughout this litigation. That is so notwithstanding that each parent has amended their Application or Response at least once.
By her Initiating Application Ms Hopper sought that she be granted sole parental responsibility for X and Y, that X and Y live with her and that Mr Hopper spend no time with the children.
Three amended or further Amended Initiating Applications have been filed by Ms Hopper on each of 20 March 2014, 19 December 2014 and 11 September 2015 respectively. The first Amended Application did not vary Ms Hopper’s plea for parenting relief. The second and third Amended Application’s varied Ms Hopper’s plea for parenting relief through joinder of an Application to permit Ms Hopper to relocate with the children to, firstly, Sydney or Melbourne and, ultimately, to Sydney.
At the conclusion of the evidence a Minute of Orders was tendered by Counsel for Ms Hopper. The Orders sought thereby had the effect of abandoning Ms Hopper's Applications:
a)That X and Y spend no time with their father; and
b)To permit relocation to Sydney with X and Y.
At the conclusion of the hearing Ms Hopper sought Orders to the following effect:
a)That parental responsibility be allocated jointly and severally between the parents (an Order pursuant to section 61C of the Act);
b)That X and Y live with Ms Hopper;
c)That X and Y spend time with their father in an increasing regime facilitated by:
i)Time initially occurring and continuing for a period of seven months at the (omitted) children’s contact service;
ii)Thereafter and for six occasions that time occur from 9am until 5pm each alternate Saturday;
iii)Thereafter and for six occasions that time occur each alternate weekend from 9am Saturday until 5pm Sunday; and
iv)Thereafter that time occur each alternate weekend from 5pm Friday until 5pm Sunday;
d)Once alternate weekend time from Friday to Sunday had commenced (approximately 12 months hence) that school holiday time then also commence; and
e)That the father undertake certain Family Counselling courses or engage with certain services.
Similarly, Mr Hopper has been consistent, or relatively so, in the relief that he has sought as regards parenting.
By his Response filed 27 August 2013 Mr Hopper had sought that the parents would have equal shared parental responsibility, that X and Y would live with their mother and that they would spend time with him for two weekends out of each three and for periods during school holidays as well as other special events and occasions.
By his Amended Response filed late December 2015 Mr Hopper continued his plea for equal shared parental responsibility and for X and Y to live with their mother. Mr Hopper did, however, amend the relief sought so as to seek an Order, “that the children live with the mother. But if the children’s current behaviour and absenteeism from school continues then parental responsibility should be given to the father”.
By his Amended Response, Mr Hopper proposed that his time with X and Y would commence at the (omitted) children’s contact service and that after three months of visits through that service that the time would then become unsupervised and commencing with day only visits and building to time each alternate weekend from Friday to Sunday and one half of school holiday periods.
At the conclusion of evidence, a Minute of Order was tendered by the Independent Children’s Lawyer which proposed an increasing regime of time not dissimilar to that proposed by Ms Hopper. In his closing submissions Mr Hopper offered support for the arrangements proposed by the Independent Children’s Lawyer.
The significant difference between Ms Hopper's Minute and that tended by the Independent Children’s Lawyer (Exhibit ICL1) is the pace at which Mr Hopper’s time with the children increases. The Independent Children’s Lawyer proposes that time would commence through the contact service and that this would occur for “no less than two occasions” (rather than for a period of seven months as sought by Ms Hopper). The Independent Children’s Lawyer thereafter proposes that time would occur:
a)Each weekend from 9am until 5pm Saturday on four occasions;
b)Each alternate weekend from 9am Saturday until 5pm Sunday on two occasions; and
c)Thereafter time to occur each alternate weekend from 5pm Friday until 5pm Sunday together with one half of each school holiday period.
The Independent Children’s Lawyer similarly proposes that Mr Hopper would engage in a number of Family Counselling services, that the parties would have joint and several parental responsibility pursuant to section 61C of the Act and that each parent would ensure that certain information from the children’s school and medical practitioners was available to each parent.
In relation to property adjustment the proposals put by each party were, again, clear and relatively consistent throughout the proceedings.
By her further Amended Application filed 11 September 2015, Ms Hopper sought a superannuation splitting Order as regards Mr Hopper’s superannuation interest with (omitted) Super equivalent to 80% of the value of the fund. This was a modest adjustment as regards the superannuation splitting Order which had previously been sought in earlier incantations of Ms Hopper's Applications.
By his Amended Response, Mr Hopper proposed that a base amount of $46,000 be allocated to Ms Hopper from his superannuation interest as above.
One difficulty that arose with respect to the formulation of relief by each parent was some uncertainty as to the value of Mr Hopper’s superannuation interest both at the date of separation and the date of Trial. Ultimately, documents with respect to the fund were produced by Mr Hopper in response to a call for production. Those documents were tended by Ms Hopper's Counsel. These documents suggest that Mr Hopper’s superannuation interest had a value, as at 20 November 2015, of $144,076. That has some significance as Mr Hopper's Financial Statement filed 24 November 2015 had, for the first time, alluded to the fund as having a value of this magnitude. Prior to this Mr Hopper's Financial Statement sworn and filed 27 August 2013 had suggested that Mr Hopper’s superannuation interest had a value, as at the date of swearing of that document, of $55,000.
During closing submissions Mr Hopper’s position was further clarified such as to concede that a superannuation splitting Order might be made to provide to Ms Hopper an amount equal to 60 – 70% of Mr Hopper’s superannuation as accumulated between cohabitation and separation respectively of the parties.
As a consequence of the amended parenting relief sought by each of the parties at the conclusion of submissions and the Orders sought by the Independent Children’s Lawyer at the conclusion of submissions, the “parameters” of the parenting dispute between these parties were significantly narrowed.
Without wishing to be unduly simplistic there was ultimately broad and general agreement as to the “end point” of Orders which would apply long term. Certainly the parties were agreed as to the allocation of parental responsibility, that the children would remain living with their mother in the (omitted) area and that the children would commence spending time with their father through the contact service and building up to alternate weekend, overnight time. The issue of significance was the rapidity with which the ultimate agreed outcome as to the children’s time with their father would be reached.
Such limitation of dispute might allow a far less detailed consideration of the evidence. However, I propose to still discuss aspects of the evidence, especially those relating to family violence, in some detail as the parties have invested significantly in the preparation and presentation of their case. More importantly, I am conscious that the issues of family violence have real relevance and importance not only to this determination but to the future success of parenting arrangements and the provision of service to these parents and children and some degree of detailed consideration is, accordingly, warranted.
Evidence considered
In Ms Hopper’s case the following material was relied upon and read:
a)Ms Hopper's Affidavit sworn or affirmed 8 September 2015 and filed 11 September 2015;
b)Ms Hopper's Amended Financial Statement sworn or affirmed 8 September 2015 and filed 11 September 2015; and
c)A Case Outline document prepared by Counsel for Ms Hopper.
Ms Hopper had earlier filed a number of Affidavits. These were not relied upon and were not read.
In Mr Hopper’s case the following material was relied upon and read:
a)The Affidavit of Mr Hopper sworn or affirmed 20 November 2015 and filed 24 November 2015;
b)The Amended Financial Statement of Mr Hopper sworn or affirmed 20 November 2015 and filed 24 November 2015; and
c)The Affidavit of Ms K (Mr Hopper’s wife) sworn or affirmed 20 November 2015 and filed 24 November 2015.
Mr Hopper had earlier filed a number of Affidavits. Those Affidavits were not relied upon by Mr Hopper in the prosecution of his case. However, Mr Hopper was cross-examined with respect to portions of those Affidavits and the relevant portions thereof have also been read and considered. The earlier Affidavits filed by Mr Hopper were marked as Exhibits and Mr Hopper’s earlier Financial Statement was also specifically the subject of cross-examination, particularly as regards the asserted value of superannuation.
At the opening of the case it became apparent that Mr Hopper's Trial material, or portions thereof, had not been received by Ms Hopper’s attorneys. Copies of those documents were made available and some time given to allow their perusal and for instructions to be taken from Ms Hopper. No Application for adjournment was made and the matter was able to proceed largely due to the efficiency of Ms Hopper’s legal representatives.
A number of Exhibits have also come into evidence and have been considered by me. These comprise:
a)Exhibit C1 – The Report of Ms A dated 9 February, 2015;
b)Exhibit C2 – A Child Dispute Conference Memo dated 17 September 2013;
c)Exhibit A1 - A Report by Dr S being a private psychiatrist consulted by Ms Hopper;
d)Exhibit A2 - Material from (employer omitted) regarding a complaint by a member of staff in relation to Mr Hopper (that staff member’s supervisor) 11 March 2014;
e)Exhibit A3 - Mr Hopper’s two earlier Affidavits sworn in the proceedings 27 March 2014 and 27 August 2013 respectively;
f)Exhibit A4 – A Minute of Orders proposed by Ms Hopper with respect to parenting;
g)Exhibit A5 - Statements with respect to the value of Mr Hopper’s superannuation interest as at November 2011, November 2012, October 2013 and November 2014 respectively;
h)Exhibit A6 - An Aid Memoir with respect to the values of Mr Hopper’s superannuation at various relevant dates;
i)Exhibit ICL1 – A Minute of Orders proposed by the Independent Children’s Lawyer;
j)Exhibit ICL2 – Material produced by the Department of Family and Community Services covering a period 15 February 2008 to 31 July 2008;
k)Exhibit ICL3 – Clinical Notes produced by Centacare;
l)Exhibit ICL4 - Material produced by (omitted) Community Health regarding Mr Hopper’s participation in Men’s Behaviour Change programs;
m)Exhibit ICL5 – Student records and Reports for X for 2014 and 2015;
n)Exhibit ICL 6 – Correspondence from the Independent Children’s Lawyer to Ms A;
o)Exhibit ICL7 – Material produced by the (omitted) Paediatric Group;
p)Exhibit R1 – A Police Report with respect to damage to a motor vehicle 3 June 2008;
q)Exhibit R2 – The balance of material produced on subpoena by (employer omitted) in relation to Mr Hopper’s employment.
Each of the parties together with the Part 15 Report writer Ms A were required for cross-examination. Mr Hopper’s partner, Ms K, was not required for cross-examination and her evidence is admitted without challenge.
To the extent that material has been admitted from that produced on subpoena, the material is considered subject to weight and as to which the parties and the Independent Children’s Lawyer have had the opportunity of making submissions.
The evidence
Within their Case Outline document, the Independent Children’s Lawyer has provided an extensive and mutualised chronology of events. I incorporate that chronology herewith.
Date Event (omitted) 1981 Date of birth of father, Mr Hopper (“the father”). Now aged 34 years. (omitted) 1982 Date of birth of mother, Ms Hopper (“the mother”). Now aged 32 years.
2001 Parties commenced their relationship.
2002 Parties commenced living together.
(omitted) 2005 Parties are married.
2005-2007 Parties lived in (omitted).
2007 Parties move to (omitted) because father obtains employment as (occupation omitted) for (employer omitted)
(omitted) 2007 X born (“X”). Now aged 7 years, 11 ½ months.
Early 2008 Mother alleges father was verbally abusive towards X and her.
2008 Mother alleges incident of family violence in which she locked the father outside and he broke the laundry window.
The father does not agree with the mother’s characterisation of this incident.
Easter Sunday 2008 Mother alleges incident of family violence during which the father slammed his hands into the dash board, hit the steering wheel and verbally abused her while she was driving.
The father does not agree with the mother’s characterisation of this incident.
A week after Easter 2008 Mother alleges incident of family violence during which the father slammed his hands and feet into the dash board, snapped the gearstick in half and verbally abused her while she was driving.
The father does not agree with the mother’s characterisation of this incident. He denies breaking the gear stick.
Beginning April 2009 Mother complains that the father drove her over the Westgate Bridge and spoke of “…that dad threw his little girl off…” and “…where all the people suicide…”
The father does not agree with the mother’s characterisation of this incident.
(omitted) 2010 Y born (“Y”). Now aged 5 ½ years.
Mid 2010 X diagnosed with “Sensory Processing Disorder”.
05.08.2010 Mother alleges that the father sexually molested her after she returned from hospital having had her appendix removed.
The father denies this incident occurred.
28.09.2010 X spilled chocolate milk on the carpet. Mother alleges the father became angry, verbally abusive and threw his own glass of chocolate milk near where X, Y and the mother were sitting.
The father denies the mother’s version of this incident.
10.12.2010 Mother alleges incident of family violence during which father knocked down the Christmas tree and verbally abused her.
The father denies the mother’s characterisation of this incident.
01.10.2010 – 05.01.2011 Mother engaged with (omitted) Women's Refuge to try to establish a safety plan.
January 2011 Mother says she arranges for father to attend the Men’s Behaviour Change Program. She alleges that he started the program but quit it in mid-2011.
07.02.2011 Mother alleges X said to her “Daddy hurt me, I scared.”
The father denies the incident as alleged.
23.02.2011 Mother alleges that father said to X “I’m going to kick your fucking face in if you don’t get up and walk” when X refused to walk at a shopping centre.
The father says he denies the incident as alleged.
08.03.2011 Mother alleges the father said to X “I am going to kick your fucking head in if you don’t shut the fuck up.”
Father denies that this incident as alleged.
28.03.2011 Mother alleges the father tackled her on the floor and then sexually assaulted her by jamming his fingers in her vagina through her undies.
The father denies the incident occurred as alleged.
29.03.2011 Mother alleges that Y spilled X’s milo. The father threw the chair with the spilled milo on it across the room.
The father does not agree with the mother’s version of this incident.
06.04.2011 X was hurt when wrestling with the father on the floor. Mother alleges that father ignored X who was crying.
Father denies ignoring X.
09.05.2011 Mother alleges father grabbed at her breast and put his head in her cleavage. When he squeezed her breast again, she hit him and he punched her with a closed fist to her cheek.
The father denies that this occurred as alleged.
25.05.2011 X hit his head on the coffee table. Mother says father said to X, “that wouldn’t have happened if you weren’t such a little prick” and slammed X into the carpet making X cry harder.
Father denies the incident as alleged.
25.07.2011 Mother alleges father yelled at X after he got home from work, “I don’t come home to look after you little cunt now fuck off.”
Father denies incident as alleged.
01.08.2011 Mother alleges father was verbally abusive towards her and X. Mother alleges father roughly grabbed X off the floor causing X to hit his head on the kids’ table and then slammed X’s head on the carpet.
Father denies incident as alleged.
February 2012 Father promoted to (occupation omitted) of (employer omitted)
He stayed in (omitted) during the week and returned to the family home 2 out of every 3 weekends.
X commences pre-school at (omitted) Pre-School-school.22.02.2012 Mother says that X said “Daddy hurt me”. Father denies this. Mother asked child where it hurts, lifts up shirt and finds a 4 x 2 cm red area on X’s right nipple.
Father denies incident as alleged
30.03.2012 Mother alleges father demanded to know details of her sexual history.
She did not answer his questions. She alleges he later physically assaulted (over two separate time frames) and verbally abused her.Father denies the incident as alleged.
20.04.2012 Mother says she heard a loud bang and then X screaming. She found X clutching his head, screaming and repeating “Daddy hit my head, Daddy hit my head”. Mother saw a “huge purple bump” on X’s head; and took him to hospital.
Father says he accidentally hit X’s head while opening the bedroom door (to take X to the toilet) in the dark.
26.09.2012 Mother alleges that father again demanded that she tell him details of her sexual history.
25.12.2012
Mother alleges that the father sexually harassed and verbally abused her.
Denied by the father.
27.12.2012 Date of separation.
Mother alleges that the father was “forcing himself on her” sexually.
Father denies this.
28.12.2012 Mother re-contacts (omitted) Women's Refuge.
2013 X’s school commencement deferred.
17.01.2013 Mother and children leave the marital home.
Father attends the home and he and the mother have words. Father calls her a “psycho bitch”.
Mother called the Police and made a statement. The Police apply for a provisional AVO for the mother’s protection from the father.
20.01.2013 Father served with provisional AVO.
04.02.2013 Albury Local Court makes a final AVO for the mother’s protection from the father.
08.02.2013-
26.06.2013Mother and children live with maternal grandparents in (omitted). 17.02.2013 Father telephoned the mother 38 times.
18.02.2013 Father attempted to telephone the mother 79 times.
The mother answered the phone after the 40th missed call and she and the father spoke to one another.19.02.2013 Father telephoned and text messaged the mother a number of times.
20.02.2013 Mother reported the father’s telephone calls and text messages to the Police.
Police charge father with Breach of AVO; and apply to vary the AVO to prevent the father approaching or contacting the children.
08.04.2013 Father was convicted of “Breach AVO” and “Use Carriage Service to Menace / Harass / Offend”. A further AVO is made for mother’s and children’s protection from the father, for a period of 18 months.
27.06.2013 Mother and children return to live in (omitted).
16.07.2013 Mother commences parenting and property proceedings at Albury Federal Circuit Court (“Albury FCC”).
Mother also files Notice of Risk of Child Abuse, Family Violence, or Risk of Family Violence.
10.08.2013 Mother completes the “Up to Parents” online course.
27.08.2013 First return date of parenting proceedings at Albury FCC. Judge Harman makes orders, inter alia:
· For appointment of an ICL;
· Parties to attend a CDC at 10 am on 17.09.2013;
· Adjourning proceedings for interim hearing by AVL between (omitted) and (omitted) on 19.09.2013.
27.08.2013 Father files Response to Initiating Application.
17.09.2013 Parents attend CDC with Mr M, Family Consultant.
No agreement reached, save that it did not appear in dispute that the children would predominantly live with the mother.
19.09.2013 Matter listed for interim hearing. Orders made by Judge Harman providing inter alia:
· By consent:
o the children live with the mother;
o the children spend no time with the father;
o Father attend upon and engage with a counsellor to be approved by the ICL to address his behaviour;
o Parties to complete intake processes at (omitted) Children's Contact Service (“ACCS”);
o Father at liberty to relist if supervised contact place become available;
o Father restrained by injunction from removing the children from day care pre-school or school they may attend.
· Proceedings adjourned to 05.12.2013 for possible interim hearing.
27.09.2013 Mother contacts ACCS.
04.11.2013 Mother attends intake interview at ACCS.
18.10.2013 –
22.11.2013X attends occupational school readiness group through (omitted) Community Health Service.
December 2013 Mother graduates with (qualifications omitted).
05.12.2013 Matter listed at Albury FCC. Orders made by Judge Harman providing, inter alia:
· Mother and attorneys liberty to redact any reference to her address or information that would disclose directly or otherwise her address or that of the children [in subpoenaed material];
· As and from 13 December 2013 father and ICL can view material;
· In the event that Mr Hopper becomes self-represented then liberty to inspect is not to extend to him personally PFO;
· Proceedings for further mention and directions to 27.03.2014.
2014 X commences formal schooling. Y starts pre-school.
Mother links in with:
· The Brighter Futures program run by Mission Australia.
· InteReach to assist with occasional respite care for the children.
Mother starts attending monthly domestic violence counselling at the Women’s Centre in (omitted). She attends 10 sessions.
Mother has spinal surgery to fix a long standing issue she had with her back.
March 2014 – May 2015 X attends counselling with Mr S at Centacare. 13.03.2014 Y diagnosed with diurnal enuresis by Dr N, Paediatrician.
20.03.2014 Mother files amended Initiating Application. (The amendment relates specifically to property.)
26.03.2014 Father files Response to amended interim Orders.
27.03.2014 Matter listed at Albury FCC. Judge Stewart makes orders providing inter alia:
· Within 14 days both parties complete all intake processes to be placed on waiting list for father to spend time with the children at ACCS;
· Parties file and serve any further material by 02.05.2014;
· Matter listed for interim hearing 09.05.2014.
09.05.2014 Matter listed for interim hearing at Albury FCC. Judge Harman makes orders providing inter alia:
· All outstanding interim Applications and Responses are withdrawn and dismissed;
· Matter adjourned for mention 25.09.2014;
· Minute of Consent Order regarding appointment of Ms A Part 15 Expert will be filed in Chambers;
· In the event Minute of Consent Orders not forthcoming regarding expert appointment then parties and ICL liberty to restore matter to list on 7 days’ notice.
17.05.2014 Mother (with children) sees father in (omitted). She takes the children into a nearby store until father has gone.
19.05.2014 Mother (with children) sees paternal grandfather at (omitted) car park. She declines to talk to him.
14.09.2014 Mother and children see father in (omitted).
Father says he heard the mother say to the children, “come here arsehole daddy is here, arsehole daddy is here”.
23.09.2014 Matter listed at Albury FCC. Judge Harman makes orders providing inter alia:
· Mother and her attorneys leave to redact any reference to her address in subpoenaed material by COB 17.10.2014;
· Thereafter father’s attorneys and ICL shall have access to inspect that material;
· In the event father should for whatever reason become self-represented then liberty to inspect material produced on Subpoena shall not extend to him personally, PFO;
· By consent Orders made for the appointment of Ms A, Clinical psychologist, as court expert I the matter.
· Matter adjourned to 04.02.2015.
October 2014-
December 2014X attended 5 sessions with child psychologist Mr G.
19.12.2014 Mother files further amended Initiating Application, seeking inter alia, an order allowing her to relocate the children’s residence to Sydney or Melbourne.
Beginning 2015 Y begins soiling his pants.
2015 X has had a number of absences from school largely due to his refusal to attend.
04.02.2015 Matter listed at Albury FCC. Judge Stewart makes orders providing inter alia:
· Matter listed for Final Hearing 15 & 16 December 2015;
· Directions made to ready the matter for final hearing.
09.02.2015 Date of Expert Report prepared by Ms A, Clinical Psychologist.
18.02.2015 Expert report released by the Court.
March 2015 Mission Australia finished their early intervention work with the mother and children.
Mother starts attending monthly domestic violence counselling at (omitted) Health.
April 2015 Mother is linked in with the Personal Helpers and Mentors program.
6 July 2015 Parties divorce.
11.09.2015 Mother files Further Amended Initiating Application seeking inter alia, an order allowing her to relocate the children’s residence to Sydney.
01.10.2015 Father marries Ms K.
15-16.12.2015 Matter listed for final hearing at Albury FCC.
November 2016 Mother due to finish her (qualifications omitted).
December 2016 Mother proposes to relocate with the children to Sydney.
To the extent that there is no controversy with respect to the matters set out in the above chronology, findings of fact are made in accordance therewith.
The chronology provided by the Independent Children’s Lawyers does not significantly address any issue with respect to property adjustment. That is appropriately so as the Independent Children’s Lawyer has no interest in that aspect of the proceedings. For the sake of completeness, the following matters relevant to the financial affairs of the parties would also be relevant:
a)Mr Hopper has worked continuously for (employer omitted) for the past 18 years having commenced work with (employer omitted) whilst he was still at school and, after leaving school, commencing full-time employment with that organisation;
b)When the parties commenced living together Ms Hopper was 19 years of age and Mr Hopper 20 years of age;
c)In 2002 and shortly after the parties commenced their cohabitation together a property at Property C was purchased. There is no significant dispute that Ms Hopper’s grandmother contributed some $5000 to fund the deposit for the home and that an amount of between $3000-$5000 was repaid;
d)In 2005 the parties sold their property at Property C and received net proceeds of sale of approximately $60,000;
e)In October 2007 the parties purchased a property at Property S. That property was purchased in the sole name of Mr Hopper, although there is no issue that this property comprised their former matrimonial home and was a property to which they had each made contribution;
f)On 28 December 2012, (being the day after the physical separation of the parties) the wife (and with her X and Y) left the former matrimonial home at Property S. The home was then largely unoccupied, although upon periodically returning to (omitted) from (omitted) (where Mr Hopper was otherwise employed and generally in residence), Mr Hopper had some limited use of the property;
g)On 17 October 2014 the Property S home was sold. The proceeds of sale of the property were insufficient to discharge the mortgage then encumbering the property and a shortfall of approximately $8000 remained. Mr Hopper’s evidence, which I accept, is that he has assumed responsibility for that mortgage since the sale of the home and has reduced that mortgage debt from $8000 to approximately $2000. Further, Mr Hopper remains liable for a personal loan which he obtained post separation, some portion of which had been used by him to affect renovations or repairs to the home prior to its sale. It is not possible to accurately allocate a proportion of that loan to that expenditure, although the total loan obtained was an amount of approximately $20,000.
As was made clear at the commencement of these reasons a central issue with respect to the determination of this case is the evidence led by the parties and each of them with respect to family violence. Accordingly, I propose to focus upon that aspect of the evidence together with the evidence of Ms A. In doing so I make clear that:
a)Whilst issues of family violence are central to the determination of the limited issues in dispute between these parents the paramount consideration remains, at all times, the children’s best interests;
b)I am conscious to ensure that in discussing the evidence in these proceedings that I avoid unnecessary criticism or attribution of blame to either parent. There is little to be gained from doing so. At times it will be necessary if not unavoidable to apportion blame and comment upon the behaviour of one or both parents. However, I propose, as far as possible, to avoid such discussion;
c)It’s my desire to ensure that the focus of any discussion of evidence is upon identifying, highlighting and furthering the children’s best interests. A discussion of the parents or their behaviour is, in some respects, important if not fundamental to a discussion of the children’s best interests. The children’s best interests, whilst paramount, are not disconnected from their parents. The children’s best interests are inherently connected with the parents. However, it is the children’s best interests which are fundamental to this determination and whilst historical events have shaped the children’s present reality and influence, the assessment of the likely benefit to these children of future arrangements as proposed I am conscious that these parents must make those arrangements work through their participation and support. The children’s best interests cannot be achieved without the active engagement of these parents.
All of the evidence has importance. No singular piece nor source of evidence assumes greater importance than others. In this regard I am conscious that whilst I will individually discuss Ms A's Report and her evidence given during cross-examination I make clear that such expert evidence, whilst greatly appreciated by the Court and of considerable assistance, is not the same as the Courts determination. Expert opinion forms part of the evidence only and does not, in any way, fetter, restrict or dictate the Courts exercise of discretion. Expert evidence must, subject to the constraints which arise from authorities such as Makita & Sprowles (2001) 52 NSWLR 705 and Aytugrul v The Queen [2012] HCA 15, be properly balanced and considered against all other evidence. That said I accept Ms A’s evidence as competent, expert and professional.
Family violence
In dealing with these proceedings and specifically in addressing the significant issues of family violence that arise, I have had regard to the Family Violence Best Practice Principles Version 3.2. I do so on the basis, as the principles themselves provide, that:
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA. They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.
The Best Practice Principles are a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter to a court’s discretion (Cameron & Walker (2010) FLC 93-445). These Best Practice Principles are not a substitute for evidence in individual cases.
The Best Practice Principles commence with an erudite summary of that discussed by the full Court in Amador & Amador (2009) 43 Fam LR 268 and as follows:
Importantly, the FLA does not require independent verification of allegations of family violence (such as police or medical reports) for a court to be satisfied that it has occurred. As the Full Court of the Family Court said in Amador & Amador (2009) 43 Fam LR 268:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.
Leaving aside other evidential issues which might arise in these proceedings (such as the Application of section 140 of the Evidence Act 1995, which are the subject of further discussion by the Full Court in Amador & Amador) this passage represents a useful starting point for a consideration of the evidence of family violence in this case.
It is common ground that Ms Hopper has not, until after the separation of these parents, made any complaint to any person, agency or authority, with respect to physical or sexual assault upon her perpetrated by Mr Hopper. Certainly complaint was made by Ms Hopper of family violence in the form of verbal abuse. Indeed, several portions of the evidence, whilst referring to Reports and Ms Hopper’s complaints of “family violence” and its escalation within the relationship, expressly disavow, in reportage of Ms Hopper, the occurrence of physical or sexual violence.
The Report Writer drew attention to this. For example, at paragraph 51 of her Report Ms A remarks:
…it seems somewhat perplexing that Ms Hopper did not report more incidents of violence to the police and\or FACS…
At paragraph 154 of her Report Ms A opines:
Some caution, however, must be exercised when considering Ms Hopper’s allegations [of family violence] in the current proceedings. The lack of police reports and\or notifications to FaCS are of some concern, given the alleged repeated incidents of extreme violence, including strangulation. While I accept that Ms Hopper may have feared the repercussions of reporting family violence to the police, it is perplexing why she would not have acted more protectively for the children…given that she reportedly feared an imminent risk of murder-suicide. Similarly, it seems odd that she did not report such high level violence in her initiating application or affidavit material. Moreover, it is concerning that Ms Hopper did not leave at that time but remained with Mr Hopper for another eight months at least, and that she wanted to remain living in the former matrimonial home where Mr Hopper would have access to the children.
I do not include the above portions of Ms A's Report to suggest that Ms A has, in any way, engaged in “victim blaming”.[10] Nor do I seek to suggest that Ms A’s opinions seek to require corroboration or contemporaneous reporting before accepting Ms Hopper’s allegations of violence. I accept that Ms A intended nothing of the sort. It would appear clear that what Ms A has sought to identify are apparent inconsistencies between the level of alleged concern and complaint by Ms Hopper when ready avenues of assistance, through services engaged with Ms Hopper at those times, were available.
[10] As discussed for example in the report by Taylor Nelson Sofres, “Reducing Violence against Women and Children” November 2015, Australian Government Department of Social Services.
The above is consistent with the views expressed by the Full Court in Amador & Amador as well as within the rules of evidence both as codified and at common law.
Whilst corroboration (by independent witnesses, contemporaneous reporting or otherwise) may not be required to allow accepting of evidence of family violence, the availability of corroborative evidence and a failure to then call evidence that is corroborative is relevant. Issue would arise, for example, by reference to the rule in Jones & Dunkel (1959) 101 CLR 298.
Ms Hopper has made a number of prior inconsistent statements regarding Mr Hopper’s behaviour, towards her, the children and generally. Those inconsistent statements are not fatal to Ms Hopper being accepted as a witness of truth. There may be perfectly valid bases by which such inconsistencies might be explained, including a desire to be protective of Mr Hopper, the family unit or, indeed, the children (such as fearing escalation of violence following disclosure).
I am not satisfied that it is necessary for me to make any adverse finding of credit as regards Ms Hopper. Nor is it necessary for me to make any adverse finding of credit as regards Mr Hopper. There is a third and preferable course.
As I commenced in the introduction to these reasons it is entirely plausible and, on balance I am satisfied more probable that the report of each parent is, from their perspective, “the truth”. This principally arises on two bases, namely:
a)Each parent is, other than as regards the evidence of the other parent, entirely credible, plausible and believable in the evidence that they give. There is nothing that would assist me, in any significant regard, differentiating between their evidence. Ms Hopper’s evidence is clear, detailed and time specific. Mr Hopper’s evidence is clear, frank, includes appropriate and candid admissions against interests and is compelling; and
b)My concern, consistent with the imperative of section 60CA of the Act, is the best interests of these children as the paramount consideration. I am concerned to focus upon the impact upon these children of that complained of by each parent, spoken to by the evidence and, to the significant extent that it is common ground, agreed evidence, of the behaviours and events which have occurred in the short lives of these children.
I readily accept that Mr Hopper was verbally abusive in this relationship escalating, at times, to throwing or breaking objects. What I am concerned may well have occurred, (and on balance am satisfied has occurred) is that Ms Hopper has then projected those behaviours to the worst outcome she could imagine and has accepted those outcomes as real. On the basis that Ms Hopper has reached a point where she believes Mr Hopper is “capable of anything” she has then extrapolated his words and actions to the conclusion she has believed possible and this has become her reality.
The above does not obviate against a consideration of the impact upon Ms Hopper of that which she has experienced or alleges that she has experienced. I accept that Ms Hopper has genuinely “experienced” certain behaviours whether they have occurred or not. They are real in her mind and made plausible by the behaviours Mr Hopper has engaged in and as then received, experienced and interpreted by Ms Hopper through the prisms of her past experience, predisposition and fears.
The impact of these “experiences” upon Ms Hopper might be highly relevant as regards a determination of the children’s future best interests and future parenting arrangements. That would be so but for two significant issues, namely:
a)It is inherent and inferred from the position advanced by Ms Hopper at the close of her case that there is no unacceptable risk to these children in resuming a relationship with their father, including unsupervised time. Whilst certain injunctive relief is sought by Ms Hopper this is primarily in the nature of mandating Mr Hopper’s attendance upon certain counselling services. No restraints as regards physical chastisement or other behaviour are sought. I am satisfied that I can infer and accept that Ms Hopper does not consider such restraint, prohibition or restriction is necessarily imposed to ensure the children’s safety or absence of risk; and
b)Nothing is put by Ms Hopper in her case (and again the Orders that are sought by Ms Hopper at the close of her case would not suggest it) to advance the proposition, by reference to authorities such as M & M [1988] HCA 68 and B & B (1993) FLC 92-357, that Ms Hopper could not “cope” with the children resuming a relationship with their father irrespective of her attitude towards Mr Hopper and that which she has experienced or perceives that she has experienced at his hands.[11]
[11] The Court would remain obliged, by reference to the obligations created by section 67ZBB of the Act and more generally by reference to a consideration of the child's best interests as paramount, to ensure that Ms Hopper was not exposed to risk herself, whether physical, psychological or otherwise, and would not be bound by the Orders proposed by the parties or the Independent Children's Lawyer (see U & U [2002] FLC 93-112).
Whilst the parameters of the dispute between these parents have significantly narrowed I propose to touch upon a number of the areas of controversy that arise with respect to family violence. I will deal with each of these as discrete events. In doing so I do not suggest that a consideration of family violence should be addressed through a consideration of specific events and incidences.
The consideration of allegations of family violence should occur by reference to the whole of the evidence, as a continuum. That is the most instructive way to approach and understand that which has occurred and the experience of the “victim”.[12]
[12] I have on this and prior occasions referred to the word “victim” within quotation marks as I am conscious that to affix or ascribed such a label to Ms Hopper or any person who has experienced family violence is potentially disempowering, disrespectful and unhelpful. I am conscious that the nomenclature of victimology is complex and I intend nothing more by the use of quotation marks than to avoid further victimisation of Ms Hopper. I do not intend through the use of quotation marks to doubt Ms Hopper's lived experience as real, personal and genuine to her.
Family violence is a relational experience, a process or system. The experience, the process or system, cannot be properly or fully seen or understood by dissecting the evidence and compartmentalising it, evaluating one event against others. The evidence is a whole, it interconnects and interacts and must be seen and approached in this way lest the patterns, the recurrences, the typifying behaviours might be missed.
I intend to look at specific aspects of the evidence as illustrative rather than to examine those events individually and absent the context of the whole. The whole of the evidence is assuredly considered in the findings that are made by me.
Before turning to any of the specific allegations of family violence that are raised I propose to deal briefly with the arrival of each of these parents at their relationship with each other and the impact that childhood experience and predisposition has had upon the issues raised in these proceedings.
The history of each parent
Ms A's Report, I am satisfied, clearly identifies matters arising from the childhood of each of these parents which impact upon the issues that have arisen in their relationship with each other and as have been agitated before the Court.
Ms Hopper’s life experience, prior to her relationship with Mr Hopper, is typified by concerns with the use of excessive or unnecessary physical discipline towards her, estrangement from her birth father, bullying, illness and chronic pain, psychological disorder, including suicidality, cutting behaviours promoting soothing, obsessive compulsive disorders together with social isolation. These are summarised at paragraph 156 of Ms A's Report as follows:
Ms Hopper’s early development, her mental health history, and her problems with relationship formation should also be considered in the analysis of the current situation. Specifically, her lack of relationship with her father and her complex relationship with the mother, indicate multiple disruptions in her attachment process. These experiences in early life have undoubtedly impacted her psychological and socio-emotional development. Ms Hopper has had a long-standing history of self harming behaviour to numb the emotional pain and she has also had severe anxiety in the form of OCD and severe depression in adulthood, which have likely affected her day to day functioning and parenting style. The absence of any long-standing friendships highlights her difficulties developing and maintaining deep emotional connections. Further she has a known history of cutting people out of her life as it suits, including her mother and now Mr Hopper. While this was likely a form of self-protection that was perhaps helpful as a child, it is now dysfunctional.
A discussion of each of the above summarised factors is undertaken by Ms A at paragraphs 16, 17, 18, 20, 21, 26, 27, 28, 33, 34, 40 and 41 of the Report, (which I do not include in detail at this point being satisfied that the above passage accurately summarises the more extensive discussion and as further elaboration would serve no real purpose).
Mr Hopper had also arrived at his relationship with Ms Hopper carrying some “baggage” from his childhood. Mr Hopper had described to Ms A that he had felt some lack of warmth in his relationship with his parents and particularly his father. Mr Hopper describes that his father was somewhat distant and also somewhat inclined to physical punishment. Importantly, and somewhat tellingly Mr Hopper reports to Ms A (paragraph 82) that “… He was smacked with a hand or with a belt occasionally, he did not consider himself to have been abused” and referring to these childhood experiences generally as “it is what it is” (paragraph 83).
In this case I am satisfied that it is appropriate to exercise jurisdiction. Each party, not only by their separation but by their Application to the Court, would appear to concede the appropriateness of the exercise of jurisdiction and submit to it.
I must next determine the current legal and equitable interests of the parties in property. So much was made clear by the High Court of Australia in Stanford & Stanford as well as by the Full Court in earlier authorities such as Burgoyne & Burgoyne (1978) FLC 90-467. That is a relatively simple exercise.
Assets
The only tangible assets owned by these parties comprise:[18]
a)Wife’s bank account $52;
b)Husband’s bank account $540;
c)Wife’s bank account $2,571;
d)(omitted) shares (50 at $26.94) $1,347;
e)Joint account of the parties $255;
f)Joint account of the parties in trust for X $2,838.21;
g)Wife’s motor vehicle $2,000.
[18] I have not included any amount of the furniture, contents and personalty held by either party. Ms Hopper discloses furniture and contents with an estimated value of $1000. Mr Hopper discloses furniture and contents with an estimated value of $20,000. Neither party gives any evidence as to the basis upon which the rest of it is advanced and I propose to disregard the estimates and leave each party with such property as they hold.
Liabilities
The liabilities of the parties comprise:[19]
a)Ms Hopper's Visa card $2,571;[20]
b)Mr Hopper’s credit card $9,161;[21]
c)Balance of home loan account (mortgage on former matrimonial home) $2,022;
d)(omitted) bank personal loan in husband’s sole name $12,694.
[19] Mr Hopper discloses a liability to his former attorneys in the sum of $13,429. I have not included this amount as it is not agitated to be included. It is unclear whether Ms Hopper has any paid or future legal expenses.
[20] The wife leads no evidence to suggest that this debt existed at separation or how the current balance was incurred.
[21] The husband leads no evidence to suggest that this debt existed at separation or how the current balance was incurred.
Superannuation
The superannuation funds available to the parties comprise:
a)Ms Hopper’s fund with (omitted) $1,365;[22]
b)Ms Hopper’s fund with (omitted) Super $430;[23]
c)Mr Hopper’s fund with (omitted) Super $144,076.
[22] This amount is unsplittable.
[23] Ibid.
Contributions
The best evidence available as to the accumulation of Mr Hopper’s superannuation entitlements is derived from his various fund statements. This would suggest that Mr Hopper joined the fund 6 June 2006. Whether Mr Hopper had been a member of a fund prior to this and whether funds from any prior fund membership are rolled into or accumulated to the present account is unclear.
There is some contention between the parties as to whether the personal loan obtained by Mr Hopper post separation should properly be included as a liability. Mr Hopper’s evidence, which I accept, is that the loan had been substantially obtained to meet legal costs and the cost of renovations and improvements to the property to ready it for sale.
Mr Hopper conceded in cross-examination that he had not consulted Ms Hopper in obtaining the loan and on the basis of the property was in his sole name. Mr Hopper, no doubt, was fully aware of Ms Hopper’s interest in the property and her desire to make claim with respect to it and the equity within it.
Ultimately, obtaining the personal loan and the performance of work with respect to the property would not appear to have dramatically increased the value of the property, although that cannot be accurately ascertained or at least quantified. All that is known is that when the property was ultimately sold the funds were insufficient to discharge the mortgage encumbering the home leaving a debt of approximately $8,000.
I am satisfied that the personal loan should be taken into account, although I do not propose to include it in any mathematical sense such as deduction of the balance from the positive value of the pool. Indeed, I do not propose to approach the division of Mr Hopper’s available superannuation entitlements in mathematical fashion. The approach to the division of superannuation entitlements on a mathematical basis, such as was discussed in West & Green (1993) FLC 92-395 is no longer, if it ever was, good law. I am conscious that subsequent authorities such as Hickey & Hickey [2003] FamCA 395 disavow such a mathematical approach.[24]
[24] Mathematical approaches, subject to some limited discretion, exist in civil law and many US jurisdictions. There may be some merit to consideration of such approaches. However, whilst such comparative jurisprudential approaches are informative and intellectually stimulating, they do not permit departure from settled law.
The above is particularly relevant as Mr Hopper agitates for a division of only superannuation entitlements accumulated during the relationship.
There is difficulty in taking such an approach not only arising from settled authority. There is a degree of mathematical disingenuity to such an approach.
Certainly, Mr Hopper has continued to contribute towards his superannuation fund post separation. Thus, he may well perceive that there is an injustice in that which is contributed post separation being included for the purpose of division between he and his now former wife.
There is some real difficulty in mathematically or actually calculating a value for Mr Hopper’s superannuation as it stood at separation and the value of the fund now. It is not possible, for example, to determine from the evidence what the value of the fund would be had Mr Hopper ceased to make any further contributions to the fund and simply continued to accrue interest and incur fees. Absent such calculation there would be prejudice to Ms Hopper who is entitled to a division of actual funds or at least to benefit from the continued growth of the investment.
The statements that have been provided by Mr Hopper would suggest that his superannuation fund has a relatively healthy rate of growth. The actual rate of growth would appear, however, to be somewhat more than the rate of growth of the fund even as augmented by post separation contribution.
Doing the best one can and by reference to the account balance as at 31 August 2012 the fund was worth, at or proximate to separation, $69,219.29. As at 31 August 2014 it was worth $116,337.94.
It is agreed that the funds value as at 20 November 2015 is $144,076.
The rate of growth of the fund would appear to be out of all proportion to that which is contributed post separation or the percentage growth rate of the fund asset out in those statements. One potential key to unlock this mystery arose during Mr Hopper’s cross-examination wherein it was disclosed that an employment bonus of $14,489 gross was received by Mr Hopper. It was conceded that this which might well have been applied, in whole or in part, to the superannuation fund. Mr Hopper could not recall the application of those funds after payment of tax (possibly 33% – his provisional tax rate) and the bonus was received 8 September 2013 referable to employment in the financial year in which the parties separated.
It cannot be accurately ascertained whether the above application of funds occurred. Whilst Mr Hopper did disclose in cross-examination the receipt of funds in the order of approaching $10,000, I am conscious that Mr Hopper has, since separation, remained liable for the mortgage encumbering the former matrimonial home together with the personal loan which I accept had been used, at least in part, to affect renovations and improvements to the property.
Mr Hopper was cross-examined as to a failure on his part to maintain the property and its surrounds such as might have impacted upon the ultimate sale price of the property. I accept Mr Hopper’s evidence that he did what he could from some distance, commuting from (omitted), whilst not residing permanently in the property, and that any reduction in value should not be borne by him. The evidence does not establish that any such reduction, in fact occurred, although correspondence from the agent managing the sale suggested that the price “may” reduce as a consequence of the presentation of the property. Mr Hopper took action in response to this.
I am not satisfied that any argument which might fall under the broad definition of “wastage” or a Kowaliw & Kowaliw (1981) FLC 91-092 argument is made out, thus no adjustment on that basis will be made.
Clearly, the parties are in agreement that Ms Hopper ceased employment shortly prior to the birth of their first child X. This was in accordance with an agreement between the parties whereby Ms Hopper would be a full-time homemaker and parent to the children. Irrespective of whether the parties had agreed to the arrangement or whether it is simply come to pass I am satisfied, in any event, that the parties’ contributions were equal.
Contribution as a homemaker and parent is important. It should not be undervalued or in any way diminished. It is equal to Mr Hopper’s contribution as a wage earner and financial provider. To his credit Mr Hopper has not submitted that it should be so. Mr Hopper simply seeks to preserve or, as it were “quarantine” his post separation contributions to superannuation. The difficulty with that approach, however, is that it cannot be mathematically calculated and settled authority would suggest such calculation would, in any event, be erroneous and in error.
Overall, I am satisfied that these parents have contributed equally to the relationship and to the maintenance, acquisition and improvement of their assets and resources (and in this case shortfall with respect to the mortgage). I am satisfied that some adjustment must be made to compensate Mr Hopper for the reality that he has assumed responsibility for the mortgage and entirety of the personal loan, although not all of the benefit of expenditure from that loan is necessarily referable to jointly owned property or property from which both parties have or will ultimately benefit.
I am satisfied that Mr Hopper’s superannuation contributions should be included for division between these parties in the same manner as tangible assets would have been. Neither party suggests otherwise. Both parties have contributed directly or indirectly to the fund which commenced during the relationship between the parties. The income that was earned by Mr Hopper was for the benefit of the family and thus, the contributions made by or on behalf of Mr Hopper to his employment related superannuation fund are, I am satisfied, the subject of equal contribution.
As the Full Court has made clear in authorities such as Clauson (1995) FLC 92-595 and Manolis & Manolis (No.2) [2011] FamCAFC 105 the Court’s discretion is broad and unfettered subject to being infused with justice and equity. The discretion must be exercised judicially and by reference to the facts of the case as and by application of relevant law. I am satisfied that there is nothing within the facts or circumstances of this case or arising from settled authority which would cause me to review or in any way interfere with my finding of equality of contribution.
Section 75(2)
Mr Hopper concedes an adjustment in favour of Ms Hopper pursuant to section 75(2) of the Act. The adjustment proposed by Mr Hopper is in the range of 10 – 20% applied to the relationships acquired superannuation. As I have already indicated that there is no basis to seek to limit or arbitrarily and falsely determine the portion of the superannuation entitlement referable to the relationship. That which presently exists, which inevitably includes some degree of post separation contribution but which also includes continued accumulated benefits from that previously contributed will be considered.
I propose to briefly consider the relevant factors under section 75(2) as follows.
Age and state of health of the parties
Both parties are in relatively good health. However, Ms Hopper, as is conceded by Mr Hopper, has been out of paid employment for some little time. Further and more relevantly Ms Hopper has a number of health problems, including chronic pain which would interfere in her return to paid employment in the foreseeable future.
This factor favours Ms Hopper.
The income, property and financial resources of each party and their capacity for paid employment
Neither party has any significant property.
At present Ms Hopper is dependent upon Centrelink benefits for her support. She is not able to readily re-enter paid employment for a variety of reasons as discussed above and as set out in her evidence.
Ms Hopper is completing a course of education that will enable her to return to employment subject to her completion of her qualification and her being able to locate an appropriate position. Even upon returning to paid employment Ms Hopper will have the disadvantage, as forcefully submitted by her Counsel, that her ability to contribute to and accumulate superannuation and other employment entitlements is restricted and has already been significantly impeded by the relationship and her devotion to her duties as a homemaker and parent.
Mr Hopper’s income is above average weekly wages but far from luxurious. That is no criticism of Mr Hopper. He is well qualified and well regarded in his position and he works hard. His income earning capacity is between $90-$100,000 per annum. At that level Mr Hopper will continue to earn approximately double that which Ms Hopper is capable of earning even once she has completed her retraining.
This factor favours Ms Hopper.
Care and control of children
Ms Hopper has and will continue to have the predominant care of the two children of this relationship, X and Y. X and Y each have some health and behavioural issues which have, in the past and will continue in the future, to require a high level of care and assistance.
Whilst as a consequence of the Orders that I will shortly make Mr Hopper will now resume a relationship with these children, his level of care and responsibility for the children will be far less than Ms Hopper’s. Ms Hopper will have the school term, day-to-day care of the children. Any requirement to attend to the children’s care during the school week, as a consequence of illness or otherwise, will fall to Ms Hopper and impact upon her earning capacity and ability to participate in employment.
This factor favours Ms Hopper.
Commitments to support others
Other than an obligation, moral and legal, to support X and Y, neither parent has any obligation to support any other person.
Standard of living
The Orders that are proposed by each of these parties will not impact immediately upon their standard of living. The only “asset” available for division is the superannuation entitlement of Mr Hopper. Those funds will not be accessible by either party until a triggering event such as retirement, total or permanent incapacity or redundancy occurs.
There is nothing in the legislation which confines a consideration of the standard of living enjoyed or to be enjoyed by a party to the present. I am satisfied that I should have regard to the standard of living that each of these parties will have available to them in retirement.
There is much merit and force to the submissions put on behalf of Ms Hopper that she is unlikely to ever catch up with Mr Hopper as regards superannuation entitlements or employment benefits generally. As is consistently established by research both Australian and international,[25] women who have subjugated their participation in paid employment and career to homemaking responsibilities are significantly disadvantaged upon separation. Ms Hopper is proof of that proposition.
[25] Historically, see Smythe & Weston, “Financial living standards after divorce: A recent snapshot” Research Paper No. 23 – December 2000, Australian Institute of Family Studies. As an illustrative example see also the Australian Human Rights Commission Report “Accumulating poverty? Women’s experiences of inequality over the lifecycle”, (2009).
An Order for division of superannuation will provide some benefit to each of the parties in retirement. Mr Hopper has much greater ability, due to his income, earning capacity, continuity of employment and remarriage, to provide for his retirement than does Ms Hopper.
This factor favours Ms Hopper.
Courses of education
Ms Hopper is undertaking a course of education that will provide her with a relevant employment qualification. As already observed, even with this qualification Ms Hopper’s income will be significantly less than Mr Hopper’s and by a factor of 2 to 1.
An Order for division of superannuation will not have any realistic impact upon the ability of Ms Hopper to complete the course of education, although it will assist her in “kick starting” her employment entitlements once she returns to the workforce and increase her prospect of accumulating a reasonable retirement “nest egg”.
This factor favours Ms Hopper.
Effect on creditors
The superannuation splitting Orders proposed by each party are neutral as regards their impact upon creditors.
Mr Hopper will be left with more significant debt to service than Ms Hopper. He will retain that which is left of the mortgage shortfall. He has already applied his income to substantially reducing that debt. Mr Hopper will also retain a personal loan, a significant although unspecified portion of which I am satisfied relates to work affected to the matrimonial home prior to its sale.
This factor favours Mr Hopper.
The extent to which each party has contributed to assets, income or earning capacity of the other
I am satisfied, as is set out above, that these parties have contributed equally to the assets and financial resources accumulated during the relationship.
I am satisfied that Ms Hopper has made a contribution, unspecified and uncalculatable as it is, to Mr Hopper’s ongoing employment and income. Ms Hopper has subjugated her participation in paid employment, albeit voluntarily, so as to ensure that Mr Hopper has been able to continue in his employment without interruption and with the benefits that have accrued through promotion and the like.
This is not a significant factor in the determination but to the extent that it has relevance, it favours Ms Hopper.
The duration of the relationship and the extent to which it has affected the earning capacity of either party
The relationship subsisted for a period of approximately 10 years. During that relationship two children were born.
Prior to the birth of the eldest child X the parties, by agreement, resolved that Ms Hopper would become a full-time homemaker and parent at least until the children commenced their primary school education. The ongoing consequence of that joint decision has been solely born by Ms Hopper.
As a consequence of the relationship and the birth of the children of the relationship, Ms Hopper’s past, present and future income, earning capacity employability and employment skills are impacted. Ms Hopper has been absent the workforce losing continuity of employment and employability. Ms Hopper has aged. Whilst antidiscrimination laws would suggest that it is unlawful to discriminate against Ms Hopper on the basis of her age (or gender) it is still possible that this might impact upon her in the future, particularly as she seeks to enter a new field of employment, once she is finished her training, as a mature age employee.
This factor favours Ms Hopper.
The need to protect a homemaker and parent in their role
This will be relevant for some short time and until Ms Hopper completes her course of education and obtains employment utilising that qualification. In the future Ms Hopper will actively commence a search for employment. Until that time this factor favours Ms Hopper.
Whether either party is cohabiting and the circumstances of that cohabitation
Ms Hopper is not cohabiting. Her evidence makes clear that she actively askews cohabitation at this time.
Mr Hopper is cohabiting. Mr Hopper’s new partner is also an employee of (employer omitted), the same employer as Mr Hopper. Their combined household income is in the vicinity of $160,000 per year.
With cohabitation comes the benefit of “economic scale”. A two income household with no children residing within it on a full-time basis is able to meet expenses far more readily than a one income household with children resident within it. Expenses of two cohabiting adults are far less than the individual expenses of two adults with separate lives.
Mr Hopper appropriately submits that the income that he has disclosed for his wife does not include her expenses. I accept that it is so. However, those expenses are, for the household, Mr Hopper and for his wife, reduced by the combination of households and with consequent benefit to Mr Hopper.
This factor favours Ms Hopper.
Child support arrangements
Since separation and as a consequence of Ms Hopper seeking and obtaining an exemption from assessment and collection of Child Support there has been no Child Support paid by Mr Hopper for the benefit of X and Y. I am not critical of Mr Hopper. He has taken action to attempt to make financial provision but has been thwarted in those attempts. However, criticism or absence thereof aside the reality for Ms Hopper does not change. She has and has had the full-time care and support of these two children of the relationship, which children have some difficulties that require some special attention.
In the foreseeable future one can imagine that an assessment of Child Support will issue and Mr Hopper will then be assessed to provide Child Support by reference to his current income. At that point in time the factor would cease to have great significance, (although the provision of Child Support is a contribution to cost rather than an equal contribution and thus, Ms Hopper would continue to bare the majority of financial responsibility as well as impact on her finances).
This factor favours Ms Hopper.
Other factors and justice and equity
As indicated above I do not accept that any adjustment with respect to “wastage” should be made whether as regards any suggested lack of maintenance in preparation of the home for sale, the incurring of debt in the form of the personal loan partially used for renovations and improvements or on any other basis.
I am conscious that Mr Hopper will be left with liability for the personal loan and mortgage shortfall and some adjustment should be made with respect to those amounts. Accordingly, I propose to make an adjustment to take account of those amounts which, in rounded terms, equate to approximately $15,000. Mr Hopper will retain liability for those amounts and I will temper the superannuation splitting Order to be made.
I propose to accede to the Orders that are sought by Ms Hopper for the transfer of the two (omitted) bank accounts nominated by her into her sole name. They are modest and largely inactive accounts.
Overall, I am satisfied that an adjustment should be made in Ms Hopper’s favour of 10 to 15% of the available assets and financial resources. I am conscious that Mr Hopper, albeit with respect to part of his superannuation only, conceded an adjustment of this amount.[26]
[26] Mr Hopper’s proposed adjustment of “10-20%” was as against a specific portion of his fund and thus, it would be disingenuous to suggest he has conceded an adjustment of up to 20% across the board.
I am satisfied that the Trustee of the relevant superannuation fund has been given notice of the Orders that are sought by Ms Hopper up to and including a superannuation split of 100% of Mr Hopper’s superannuation interest. Accordingly, I am satisfied that procedural fairness has been afforded to the Trustee.
I do not propose to mathematically calculate the benefit that Ms Hopper will receive. It is false and arbitrary to do so. However, by way of explanation and doing the best that I can, I make clear that I am satisfied that an adjustment must be made to reflect the debt of approximately $15,000 Mr Hopper will retain.
If Ms Hopper were to receive 65% of the superannuation fund, then she would be entitled to approximately $93,500. 60% represents approximately $86,000.
The superannuation fund remains in its growth phase. As Mr Hopper continues to contribute to the fund at a far higher rate than Ms Hopper will be able to contribute to the fund that will be established as a consequence of the splitting Order, I am satisfied that a splitting Order in this range will be just and equitable. The reality remains that neither can access the funds for many years and on that basis I am not prepared to further speculate on what the future may hold for the performance of their funds which is beyond the control of the parties and in the hands of the fund’s Trustee.
The debt that Mr Hopper retains will be met from his post tax income. This must be taken into account. Mr Hopper is not able to withdraw funds to pay the debts and will service them for some time. On this basis I am satisfied an adjustment of greater weight is warranted and so as to place Ms Hopper’s section 75(2) adjustment at the bottom of the range I have identified and to offset that adjustment somewhat.
I will round down slightly the figure that will be split and payable to Ms Hopper to an amount of $80,000.
In all of those circumstances, Orders will be made as sought by Ms Hopper but with specification within the superannuation splitting Order for a payment split of $80,000 in Ms Hopper’s favour. Ms Hopper will otherwise retain the two (omitted) bank accounts presently held in joint names together with all other assets in her possession, custody or control.
Mr Hopper will retain the balance of his superannuation interest together with all accounts in his name and all other property in his possession, custody or control. Mr Hopper’s liability for the personal loan, the credit card in his name (as to which I have made no adjustment as between the parties), his incurred legal fees and the remaining shortfall in the mortgage will remain his liability and responsibility.
Accordingly, and for the reasons above I make Orders as follows (see Orders).
I certify that the preceding four hundred and six (406) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 January 2016
From the AVERT Training package accessed 11.01.2016 at Family Violence.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Remedies
-
Duty of Care
-
Negligence
7
7