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… |
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- AGLC
- Hopper & Hopper [2016] FCCA 84
- Case
- [2016] FCCA 84
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, in relation to parenting, the court was required to determine whether it was in the best interests of the children, X and Y, for them to resume spending time with their father, Mr Hopper, and to assess the risk associated with such an arrangement, particularly in light of conceded family violence and the children's exposure to parental conflict. Secondly, concerning property adjustment, the court had to determine the appropriate division of the parties' assets, including how to treat the husband's post-separation superannuation contributions and whether to make any adjustments under section 75(2) of the *Family Law Act 1975*.
On the parenting matter, the court considered the unacceptable risk posed by the father's conduct and the influence of the mother's views on the children's recollections of their father. The court found that the children should live with their mother and spend time with their father under supervised contact for an initial period. In the property proceedings, the court noted that the preservation of post-separation superannuation contributions could not be mathematically calculated and settled, and found an equality of contribution between the parties. Applying section 75(2) factors, the court made an adjustment in favour of the wife. The orders reflect these findings, granting shared parental responsibility, stipulating that the children live with the mother, and outlining a phased approach to supervised time with the father.
Orders
Orders of the court
1.
Pursuant to section 61C of the Family Law Act 1975, each of the parents, namely, Ms Hopper and Mr Hopper, shall have parental responsibility for their children, X born (omitted) 2007 and Y born (omitted) 2010, at such times as they are in their respective care.
2.
X and Y shall live with their mother.
3.
X and Y shall spend time with their father:
(a) Supervised at the (omitted) Children's Contact Service for a period of 2 months and with respect to same:
(i)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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