Kaigler and Kaigler and Anor - [2019] FCCA 3454

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAIGLER & KAIGLER & ANOR

[2019] FCCA 3454

Catchwords:
FAMILY LAW – Parenting – child less than two years old – mother’s concerns about father’s drug use – mother seeks hair follicle testing – family report recommending supervised time until father demonstrably clean of drugs – orders made generally in accordance with family report.

PROPERTY – Relationship lasting about five and a half years – father owning matrimonial home before relationship – father’s ownership greatly assisted by his father – whether enforceable loan in favour of father’s father – mother’s future needs substantially greater – 60/40 property division in favour of the mother – no equalisation of superannuation.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode & Goode [2006] FamCA 1346

Malcher & Malcher [2016] FamCA 1063

Ogilvie & Adams [1981] VR 1043

Stanford & Stanford (2012) FLC 93-51

Applicant:

MS KAIGLER

First Respondent:

MR KAIGLER

Second Respondent:

MR A KAIGLER

File Number:

MLC 794 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

7 & 8 October 2019

Date of Last Submission:

8 October 2019

Delivered at:

Dandenong

Delivered on:

10 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hutchings

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the First Respondent:

Mr Fronis

Solicitors for the First Respondent:

A Ace Solicitors

Counsel for the Second Respondent:

Mr Sun

Solicitors for the Second Respondent:

Sun And Co Lawyers

ORDERS

PARENTING

All previous parenting orders are discharged.
The Mother have sole parental responsibility for the child X born … 2017 (“the child”) and the Mother will keep the Father informed of major decisions in relation to the child and seek input of the Father regarding such issues.
The child live with the Mother.
Within 7 days, the parties do all such acts and things and sign all necessary documents to complete the intake procedures required to enable supervised time to take place between the Father and the child to commence at a Child Contact Centre as deemed appropriate by the Court whereby supervised time will occur for not less than two hours each alternate weekend on a Saturday for 8 sessions unless otherwise agreed between the parties in writing.
In the alternative to paragraph 4 hereof, the parties do all such acts and things and sign all necessary documents to complete the intake procedures to enable supervised time to take place between the Father and the child to commence under the supervision of B Community Services of Family Contact Services each alternate Saturday from 10:30am to 12:30pm to eight sessions unless otherwise agreed between the parties in writing.
Each of the parties comply with all rules and lawful direction of the Contact Centre, B Community Services or Family Contact Services including but not limited to any direction by them that the time between the Father and the child is to conclude early.
The Father be responsible for the costs associated with the child spending supervised time with him.
Each of the parties are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaigler and Kaigler and Anor

Details

AGLC: Kaigler and Kaigler and Anor [2019] FCCA 3454
Case: [2019] FCCA 3454
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the matter of *Kaigler and Kaigler*, Judge Burchardt of the Federal Circuit and Family Court of Australia made orders concerning both parenting and property matters. The parenting dispute involved the mother's concerns regarding the father's drug use and her application for hair follicle testing for the child. The property dispute concerned the division of assets after a relationship of approximately five and a half years, including the matrimonial home which the father owned prior to the relationship, and a potential loan from the father's father.

The court was required to determine the appropriate parenting arrangements for the child, particularly in light of the mother's concerns about the father's drug use and the recommendations of a family report. In relation to property, the court needed to ascertain the enforceability of a loan claimed by the father's father and to determine a just and equitable division of the parties' assets, considering the mother's substantially greater future needs.

On the parenting issues, the court made orders generally in accordance with the family report, which recommended supervised time for the father until he demonstrably ceased drug use. The orders included the mother having sole parental responsibility, the child living with the mother, and a staged introduction of supervised time between the father and child, with the father responsible for the costs. The father was also ordered to undergo hair follicle testing and supervised urine drug screens, and to complete a Men's Behavioural Change Program. The court also made orders regarding overseas travel for the child and the holding of the child's passport. In the property division, the court ordered that after sale of the matrimonial home and discharge of encumbrances, the net proceeds be divided 60% in favour of the mother and 40% in favour of the father. The court also made specific orders regarding the retention of various assets, including bank accounts, superannuation, and personal belongings, and ordered the father to pay specific costs to the mother's solicitors from his portion of the sale proceeds.

Orders

Orders of the court

PARENTING

All previous parenting orders are discharged.

The Mother have sole parental responsibility for the child X born … 2017 (“the child”) and the Mother will keep the Father informed of major decisions in relation to the child and seek input of the Father regarding such issues.

The child live with the Mother.

Within 7 days, the parties do all such acts and things and sign all necessary documents to complete the intake procedures required to enable supervised time to take place between the Father and the child to commence at a Child Contact Centre as deemed appropriate by the Court whereby supervised time will occur for not less than two hours each alternate weekend on a Saturday for 8 sessions unless otherwise agreed between the parties in writing.

In the alternative to paragraph 4 hereof, the parties do all such acts and things and sign all necessary documents to complete the intake procedures to enable supervised time to take place between the Father and the child to commence under the supervision of B Community Services of Family Contact Services each alternate Saturday from 10:30am to 12:30pm to eight sessions unless otherwise agreed between the parties in writing.

Each of the parties comply with all rules and lawful direction of the Contact Centre, B Community Services or Family Contact Services including but not limited to any direction by them that the time between the Father and the child is to conclude early.

The Father be responsible for the costs associated with the child spending supervised time with him.

Each of the parties are at liberty to obtain a report from the Child Contact Centre that is engaged or from B Community Services or from Family Contact Services.

Following the eight sessions referred to above, time increase to once a week on Saturdays from 9:00am to 5:00pm.

10.

Within 7 days of a request from the Mother’s solicitor, the Father undergo hair follicle testing for illicit substances and the Father be responsible for the costs of the testing and provide the Mother’s solicitor with the results as soon as they become available.

11.

Pending the taking of sample of hair for the purpose of testing pursuant to Order 9 herein, the Father be restrained from cutting, shaving or dying his hair or any part of it.

12.

Until further Order, the Father undertake supervised urine drug screen testing (“the testing”) and that:

(a) The testing occur at a pathology centre or other appropriate place as approved by the Mother’s lawyer from time to time;

(b) The testing shall occur randomly (but not more frequently than 3 times in any 4 week period) and within 24 hours of the Mother’s lawyer making a request for the testing to occur;

(d) For 24 hours immediately prior to the commencement of any time with the child and during such time, the Father be restrained by injunction from ingesting, consuming any legal or illegal drug or substance save and except for:

(i) Any legal medication prescribed to the Father by a registered medical practitioner and taken or used by the Father strictly in accordance with the prescription;

(ii) Any over the counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine) and taken or used by the Father strictly in accordance with directions.

13.

The Father, Mother and their servants and agents be and are restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and

(b) Discussing these proceedings

to, with or in the presence or hearing of the child and from permitting any other person to do so.

14.

The Father complete a Men’s Behavioural Change Program and within 7 days of enrolment provide a copy of said enrolment to the Mother’s solicitor and within 7 days of completion of the program provide evidence of completion of the program to the Mother’s solicitor.

15.

Each of the parties continue to attend upon their treating counsellor.

16.

The Mother be permitted to travel overseas with the child upon providing written notice to the Father of her intention to travel with the child, including details of the dates of proposed travel and provided that a copy of the itinerary to the Father has been provided not less than 30 days prior to the proposed travel dates.

17.

The Father and the Mother shall sign all such documents and do all such acts and things as may be required to obtain, or renew, a passport for the child, with the Father and the Mother to equally share the costs of obtaining or renewing the passport.

18.

The Mother shall hold the child’s passport.

19.

Both parties enrol in and complete the Parenting Orders Program.

20.

The parties have liberty to apply.

21.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

PROPERTY

22.

Upon the settlement of the property at C Street, Suburb D (“the Suburb D property”) the net sale proceeds be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses of the sale of the Suburb D property;

(b) Secondly, to discharge the mortgage and any other encumbrance affecting Suburb D property;

(i) 60 percent to the Mother; and

(ii) 40 percent to the Father.

23.

From the Father’s portion in order 4(c)(ii) hereof, the Father pay to the Mother’s solicitors, Pearsons Lawyers Pty Ltd, the following sums with respect to the orders for costs made against the Respondent pursuant to interim order made 4 June 2019:

(a) $1,850 for 1 April 2019;

(b) $1,867 for 20 May 2019; and

24.

The Mother be solely liable for and indemnify the Father against all payments with respect to any liabilities in her sole name.

25.

The Father be solely for and indemnify the Mother against all payments with respect to any liabilities in his sole name.

26.

The Mother retain the following items to the exclusion of the Father:

(a) Her Motor Vehicle E motor vehicle;

(b) Her bank accounts and savings with Westpac;

(d) Her furniture, personal belongings and effects.

27.

The Father retain the following items to the exclusion of the Mother:

(a) His superannuation with F Superannuation;

(b) His bank accounts and savings with Westpac;

(d) His furniture, personal belongings and effects.

28.

The parties do all acts and sign all such documents as may be necessary to transfer the dog Z into the Mother’s sole name and that pending the transfer of registration the Mother continue to have possession.

29.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all 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 the parties in any joint bank accounts are to be divided equally between the parties and the parties do all acts and sign all documents necessary to close any such accounts;

(c) Save as provided herein each party forego any claims they may 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; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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