Kaigler and Kaigler and Anor
[2019] FCCA 3454
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAIGLER & KAIGLER & ANOR | [2019] FCCA 3454 |
| Catchwords: 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 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.
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.
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.
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;
(c)The Father shall produce the results of each test within 24 hours of receipt to the Mother’s solicitor.
(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.
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.
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.
Each of the parties continue to attend upon their treating counsellor.
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.
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.
The Mother shall hold the child’s passport.
Both parties enrol in and complete the Parenting Orders Program.
The parties have liberty to apply.
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
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;
(c)Thirdly, the balance then remaining be divided in the proportion of:
(i)60 percent to the Mother; and
(ii)40 percent to the Father.
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
(c)$1,867 for 3 June 2019.
The Mother be solely liable for and indemnify the Father against all payments with respect to any liabilities in her sole name.
The Father be solely for and indemnify the Mother against all payments with respect to any liabilities in his sole name.
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;
(c)Her superannuation with F Superannuation; and
(d)Her furniture, personal belongings and effects.
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;
(c)His firearms; and
(d)His furniture, personal belongings and effects.
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Kaigler & Kaigler & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 794 of 2019
| MS KAIGLER |
Applicant
And
| MR KAIGLER |
First Respondent
| MR A KAIGLER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property dispute. It is concerned with the best interests of a young boy, X, born on … 2017. The mother proposes (putting the matter broadly) that X live with her and spend only supervised time with the father, with the father to be compelled to undertake hair follicle testing and ongoing supervised urine drug screen testing prior to spending any time with the child. The father, by way of contrast, seeks to reinstate a far more extensive spend time regime, which was, in fact, originally ordered by consent in April 2019.
So far as property matters are concerned, the mother seeks that there be a division of the parties’ property 70/30 in her favour, together with an equalisation of superannuation. The father’s position is that the parties should repay a loan to his father, the second respondent, and that the remaining funds should be divided equally between the parties. He opposes an equalisation of superannuation.
For the reasons that follow, I am going to make the parenting orders largely as recommended by Dr G, the family consultant who prepared the family report, and I am going to divide the parties’ property 60/40 in favour of the mother, without an equalisation of superannuation. I should also note that I do not accept that the parties owe any enforceable debt to Mr A Kaigler.
Agreed or Uncontroversial Matters
The mother was born on … 1987 and the father was born on … 1982. They met in late 2012 and commenced cohabitation in … 2013. They married on … 2017 and final separation took place in September 2018, at which point X was, of course, under one year old.
The mother worked full time, essentially, throughout the relationship and the father worked in a business controlled by his own father until he ceased work following the separation. The mother has returned to full time work and X is looked after either by a child care centre and/or by family members of the mother’s family.
The father owned the former matrimonial home prior to the commencement of the relationship. He was undoubtedly assisted by his father and then-stepmother in obtaining and/or retaining his interest in that property. The alleged loan, however, will need to be dealt with separately.
The Affidavit Material
The parties have filed significant tranches of affidavit material since the proceeding first commenced in January 2019. The two primary players have both filed trial affidavits and Mr A Kaigler has also filed an affidavit, as has his former partner Ms J. I do not propose to traverse the parties’ affidavit material because the matters are, in part, paraphrased in the uncontroversial matters above, but more particularly because the parties’ evidence is fully encapsulated in what they actually said in their evidence before the Court. It is, however, appropriate to traverse the reports of the two professional witnesses, Dr K and Dr G.
The Reports of Dr K
Dr K conducted reviews with both the mother and father, and they are annexed to his affidavit filed on 16 September 2019.
The mother’s history as given to Dr K was consistent with her affidavit material. She expressed concerns with the father’s having put cameras up and locks on the doors in the matrimonial home and that she had found a suitcase full of drugs after separation. She referred to a threat on the part of the father to slit her throat and those of her family and a family violence incident on 1 October 2018 which led to an Intervention Order, together with choking her in November 2018 and sending threatening text messages on 6 November 2018. I note that at paragraph 42 of Dr K’s report, the mother admitted hitting the father on 6 September 2018, albeit that this was, on her version, a response to an assault on her by the father. Dr K also noted at paragraph 46 a text from the mother to the father in these terms:
if you don’t sell the house to look after where I will raise your son, the only further contact you will have is through my solicitors, you won’t be getting custody arrangements, make your choice.
At paragraphs 49 to 51, Dr K opined:
49. In my opinion, Ms Kaigler has some situation anxiety that does not meet the threshold for the diagnosis of a mental illness.
50. I believe she does not require any psychiatric treatment as such but her counselling as she has arranged would be useful in terms of processing the end of the relationship and her ongoing experience of feeling hurt. It would also assist her to cope with the ongoing Court process.
51. It follows therefore that I do not believe that there are any impediments from a mental health point of view to her care of the child.
Dr K also, of course, reported on the father. At paragraph 13, Dr K recorded:
He was difficult to interview at times being quite evasive, particularly around his methamphetamine use. He continually steered the conversation back to Ms Kaigler when asked to describe his own situation and symptoms.
At paragraph 21, Dr K noted:
The letter of psychiatrist Dr L dated 15 May 2019, according to the subpoena notes, indicated a possible family history of psychosis in his mother and a history of a “major alcohol problem” in his father.
I note that paragraph 29, in dealing with methamphetamine or ice, the father described some use of ice around 2012 with no real pattern and a further use in 2014. In the last few years, he had used approximately a dozen times, and the last use was in January 2019. Dr K noted at paragraph 48 that the father had been assessed by Dr M, a GP at the N Medical Centre on 19 March 2019 as being depressed and was referred to a Dr O, psychiatrist, for a one-off assessment.
The report noted that psychologist Mr P saw the father on 29 April 2019 and noted anxiety and panic attacks, making a diagnosis of anxiety and recommending cognitive behavioural therapy (paragraph 52). It was noted in Mr P’s letter of 1 August 2019 that a plan had been made to continue counselling but the father had not made contact for a second session. Paragraphs 53 and 56 of the report noted:
53. The letter of Dr L dated 15 May 2019 noted a presentation of anxiety, difficulty socialising and disturbed sleep. It was noted that the presentation occurred in the context of an ice addiction and difficulties in separation from his partner.
56. A diagnosis of Adjustment Disorder was made with a differential (alternative) diagnosis of a Major Depressive Disorder.
At paragraph 57, Dr K noted that the father had not had contact with area mental health services.
The report noted allegations of violence to which it will be necessary to return. The report notes the large numbers of negative text messages sent by the father to the mother.
At paragraph 82, Dr K opined that the father was suffering from an adjustment disorder with depressed and anxious mood in the context of the situation. He did not find a major depressive disorder. At paragraphs 84 to 89, the report went on to say:
84. I do not believe he currently requires medication for adjustment disorder, and that is usually the case and consistent with Dr L’s opinion, but it would be useful for him to reengage with the psychologist to ensure ongoing monitoring for his depression and anxiety and assisting him with strategies to cope with the current situation. Medication would be indicated if his depression or anxiety worsened and could be restarted by his GP.
85. In my opinion, whilst Mr Kaigler has minimised his mental health concerns in this assessment, with differing reports to clinicians at N Medical Centre, particularly in relation to panic attacks, lowered mood and anxiety in general, I do not find, on balance, that he is at present sufficiently anxious or depressed so as to impair his ability to parent the child. I also note that insofar as missing the child is a factor in his depression, that contact will improve this.
86. In my opinion, Mr Kaigler has also demonstrated at times impulsive and aggressive behaviour in the context of a highly stressful situation. Whilst the adjustment disorder may have reduced his capacity to handle situations to an extent, I think it is likely that this reflects some vulnerability in his personality, which in my opinion also has features of low self-worth. Whilst I do not believe that he has a personality disorder as such and that it does not necessarily translate to impairment in parenting, I believe that it is worth assessing further and addressing these issues in psychological treatment.
87. Mr Kaigler has had a history of methamphetamine use and there is significant dispute about the extent and duration of that usage. I note that there is not a recent hair follicle test and all recent drug screens have been normal.
88. It is my opinion, on balance that Mr Kaigler most likely had had methamphetamine use disorder. The Urine Drug Screen exclude usage in the days preceding each test, and a hair follicle test would indicate any usage in the preceding three months.
89. In the absence of current evidence of more recent usage, I am unable to find any current impediment of his amphetamine use on his ability to care for the child.
The report went on to note that ongoing psychotherapy would be of benefit to the father.
The Report of Dr G
Dr G’s affidavit sworn 16 September 2019 appends his family report.
I note that in the background at paragraph 4, the father told Dr G he had been drug-free since March 2019. He has not spent time with X since May 2019 (paragraph 6) and lives a very substantial drive away from where the mother now lives. Dr G noted the differing applications and proposals of the parties at paragraphs 19 to 22. The father was seeking for the child to be with him every alternate weekend from Thursday to Sunday and the mother was seeking professional supervised time for at least one year.
I note that the father was unable to explain why he ceased work relatively shortly after X’s birth (the mother’s affidavit said June 2018). Dr G also noted DHHS reports in letters dated 17 December 2018 and 19 February 2019. The reports had noted the father’s refusal to engage with the department and a possible attempt at reconciliation in March 2019 (paragraph 25).
Even though X had not seen his father since May, the report noted at paragraph 40:
X smiled at Mr Kaigler when he entered the room and appeared pleased to see him. He is a busy, active toddler who is constantly on the move. His language is developing. He readily accepted and ate snacks and treats Mr Kaigler brought to the appointment. X was physical with Mr Kaigler, cuddling up to him. Mr Kaigler was attentive and responsive.
At paragraph 42, Dr G recorded that both parents presented as loving parents who could not agree about the spend time regime. At paragraph 43, Dr G opined that the relationship between X and his father was likely to be tenuous and underdeveloped and needed to be restored, but in a supported manner.
Dr G noted that the parental relationship was tense and strained and their capacity to communicate and exchange information about X was limited (paragraph 52), notwithstanding the exploration of a reconciliation in March 2019.
Dr G went on to recommend supervised time at paragraph 54 as soon as possible. He went on to opine that supervised time cannot be indefinite (paragraph 55) and recommended that the father undertake follicle drug screens in a timely manner, engage with a counsellor and possibly a men’s behaviour change program (paragraph 55).
At paragraphs 61-62, Dr G opined:
61. Given the degree of relationship disruption experienced by the child, Mr Kaigler’s relationship with X is likely to be underdeveloped. Consequently, this Counsellor’s preference is for a day contact regime to remain in place for at least six months so as to give X an opportunity to consolidate and re-establish his relationship with Mr Kaigler. A slow and patient approach seems warranted given the child’s young age and the amount of disruption experienced. This period of time will give Mr Kaigler the opportunity to attend to and implement the measures suggested.
62. Predicting when day contact should progress once again to an overnight basis is not easy. However, subject to the restoration of the relationship progressing smoothly, consideration could be given to the child’s time with Mr Kaigler increasing to an overnight basis at the conclusion of the six months of day contact only when by then, the child will be older and other measures suggested above will have been implemented.
At paragraph 68, Dr G examined the question of parental responsibility. He recommended against any application for sole parental responsibility by the mother. Formal recommendations by Dr G which traverse the matters already described are at paragraphs 70 to 78.
The Submissions Made and Evidence Given at Court
What follows is taken from my notes. Self-evidently, it is not a transcript. It records matters I find of significance.
The Evidence of the Mother
Counsel for the mother made a helpful opening indicating the positions of the parties and the background facts. The mother was then called and adopted her trial affidavit and most recent Financial Statement as true and correct. She confirmed that she has moved in with her own mother at Suburb Y and continues in employment as a customer service officer.
Under cross-examination by counsel for the father, the mother confirmed that both parents took leave when X was born. The father was not actually working when X was born. She said that the father had undertaken very little bottle-feeding and that most assistance she received was from her mother. She conceded the father would come into the house from the garage to care for X. She went back to work after 10 months, part time from 12 to 5 pm. She denied that the father had looked after X and said he started child care on half days, Monday to Friday. He had been picked up by her mother at about 3 pm. She confirmed that when she started work, she saw CCTV of the father taking X out every day at 3 pm. When she went back to work, the father was looking after X for two to three weeks. Things changed very quickly and she got her mother to take X. The grandmother was always helping out. The father had a problem with her mother. She conceded there might have been a number of reasons why the father might change X’s clothes.
The mother conceded that orders were made by consent in March 2019. She said she was attempting to be fair with Mr Kaigler and she cared about his relationship with X. The attempted reconciliation was after these orders were made and took place in March or April 2019. She had read the reports of Dr G and Dr K which said that stress had not impaired her capacity to care for X. She was conscious of what she was doing when she agreed to the March orders. She did not think they were in X’s best interests but she agreed them anyway.
The father was only asking for the dog, Z. Z is a breeding dog. She is not a breeder. She had sold puppies for $1500 each. That was in this year and possibly March. Z was an unsuccessful breed this year and produced only one or two offspring. He is seven years old. (It emerged that the mother’s understanding of these matters was obtained online).
The mother was aware that the father’s contravention application was discontinued and the child had not spent time with the father as per the March orders. Throughout the relationship, the father got up from lunchtime onwards. He went to the garage. He spent all his time in the garage. He would come in to see what was wrong if he heard X crying. The garage was attached to the house.
There had been communications by text messages between the parties and both had been inappropriate. Both of them should be more respectful. It was difficult with the AVO. She could be respectful in texts but the father had breached the Intervention Order, so she was concerned. She had sent text messages to the father saying he would not see the child if he did not sell the former family home. She accepted that this was inappropriate. She said it was more to stop the father’s threats. It was important X have a relationship with the father.
The mother denied being unfaithful to the father. He had started a relationship with Ms R during their relationship. She had seen text messages and had spoken to Ms R, who confirmed this. This made the mother quite upset. She had seen Ms R, who gave her a birthday present a month after X was born. She had never seen her use drugs, but the father told her that both Ms R and her brother were drug users. When pressed, she repeated this evidence in terms that I found convincing.
The mother was cross-examined about the incident on 1 October 2018 when the police were called. She had called the first time and the second call was by a neighbour. The police needed to be there but said they could not do anything because there were interim orders in place. The police did not say the father could take the child to lunch. The mother was adamant that the father did slap her and headbutt her. She made a police statement. Her neighbour came in. X was in the lounge room, not at the neighbours’.
The neighbour who had been present was called Ms AA and made a statement to the police. She was not calling Ms AA to give evidence because Ms AA was scared of Mr Kaigler. She had asked her to be a witness but Ms AA said she was scared for the repercussions with Mr Kaigler. The headbutt was before Ms AA came in. The headbutt and slap were approximately 20 seconds apart. The mother was unable to say why Ms AA said there was only one slap.
The mother was asked about a warning she had received at work in 2017. She denied threatening to slit the throat of a fellow employee (she had made assertions in her own affidavit that the father made this threat to her). She was warned for her language because she swore at another employee. She did not report the father’s threat to slit her and her family’s throats to the police. She said there were a lot of events she had not reported because she was afraid of the repercussions. She did not want the father to go to jail. He is still her husband and the father of her son. She only made a report because it went on for 12 months and she could not stand it. He threatened to slit her throat and her family’s throat if she put him in jail through an AVO.
She had confronted the father in November 2018 because he had been unfaithful. She was not angry, but was more hurt. She showed the father text messages. She went through his phone. She knew his password. It was not just words. The father kept returning to the house despite the AVO and assaulted her. X was living in the house. The father came to the house prior to the AVO. He came to collect his belongings and she allowed him to come with a police escort. She denied having any documents of the father in her possession.
She had been through the father’s belongings while he was in the house.
The mother said that the father choked her in November 2018. She had not been to the doctor or to the police. She had not mentioned that he grabbed her arms. It was a traumatic experience for her. The father only said, “Calm down before the neighbours hear again and call the police.” The mother said, “It is hard when the person hurting you is the father of your child.” She did not know what to do. She was traumatised that someone stood there and watched it and did nothing.
She had had her car at the matrimonial home. The Motor Vehicle BB was taken on 3 December, the day before the AVO hearing. There is CCTV next door and she had seen it and knew who had taken the car. She was not disputing it was not her car. It was taken in the middle of the night to stop her going to the AVO the next day. It was either him or his father. She had, in fact, been to the police because it was a breach of the AVO.
The mother confirmed that between March and April 2019, the father saw X on three or possibly four occasions. The orders were from Friday to Sunday. The father lives two hours from Melbourne and does not have a separate house. She went on the third visit. X spent two nights. On the third occasion, she came because the father invited her to see him with X.
There are employees on the property. These are backpackers. She denied that X and the father had a separate space. They lived with the grandparents. The granny flat is where a couple of the employees live. The mother said the grandfather was high on marijuana because he ate a whole cake and there was reference to munchies. On 19 May, she had called the father many times. She hung up because he would not answer her questions. She had not agreed that she would go to Suburb CC to collect X. Changeover occurred in the ultimate, however, and there was no argument. The father put X in the car and she has not allowed time since.
She had not expected to settle at the conciliation conference on 20 May. The house was already on the market and she knew he would never accept any offer. She said, “That is why we are here.” She denied there was an offer of $650,000. I would interpolate and say the mother’s bitterness about the financial outcomes in this matter was palpable.
The mother agreed the property was valued at $750,000 in February, but she had to get solicitors to get the father to sell. She stopped at the time with X because the father did not follow court orders. She had not thought this would bring him back to her.
Ms J had never met X. She had had no involvement since her divorce from Mr A Kaigler. The mother volunteered, not in response to any question, that the divorce was because Mr A Kaigler was having an affair. Ms H has met X on various birthdays and the like and she had never seen Ms H use drugs. She had never seen Mr A Kaigler use drugs. During the whole of the relationship, he was known to be struggling with drugs. She had relied upon what Mr Kaigler had told her.
Mr Kaigler had told her he did drugs with Ms R and her brother. He started to tell the truth after she found the drugs. It was a surprise to her when she read his counsellor’s report of the father using drugs. She had only used drugs on Mr Kaigler’s birthday party earlier in the relationship in the first year or two. She knew he had used drugs in the past. She wants the father to be drug-free. Some of his drug testing was not undertaken within 24 hours and she would prefer a hair follicle test. The father can have supervised visitation straight away. Her mother cannot supervise. She does not agree to do so as there have been too many threats to her from the father. The mother would trust professionals and would prefer them to supervise. It was a long way to go, but if the father was drug-free, then he should have time.
She seeks a passport for X. She wants to go on trips perhaps to Country DD or Country EE.
The mother conceded the father owned his firearms before the relationship. He has hidden them. She had a car at the start of the relationship. It was a Motor Vehicle S, but not roadworthy. She had had to buy a new car and paid $25,000. It was a 2005 model.
The mother said that they had renovated the house throughout the relationship. She had not remembered the father fixing the lawnmower. The father paid the mortgage during the relationship when he was employed by his own father. She did not know about the last 12 months. The father did not go back to work after X was born, but had told her he was paying the mortgage.
The mother conceded that Mr A Kaigler gave them $5000 for their wedding. Her brother, Mr T, lived with them between October 2016 until separation, during which time he paid $100 per week. She had not taken the money which she had left for the father. A buyer offered $650,000 but eventually raised his offer to $670,000. The father had given her the engagement and wedding ring, but she had paid for them. She paid $10,000 for the engagement ring and $5000 for the wedding rings combined.
The father had the house when the relationship started. She was not aware of any loan by his father. The father had to pay his ex-wife and had to re-mortgage because it was in joint names. She was around when the refinance took place. There was no agreement that the father would repay his father. She had seen all the father’s bank accounts and there was no such loan.
Counsel for Mr A Kaigler did not elect to put any questions to the witness.
In re-examination, the Mother confirmed that munchies is hunger from marijuana.
The Evidence of Mr T
Mr T adopted his affidavit as true and correct. Under cross-examination by counsel for the father, he confirmed that the father was pleasant when he was not on drugs and they got on well. He loves his sister. He had been told to leave the former matrimonial home following an argument between the parents. The father told him to get his shit out of the house and that he did not want to see him there any more. He had lent roughly $22,000 to his sister for legal fees from his savings. He was around when X was born. The father was not working and his sister took maternity leave. Both were at home during the day. He saw the father bottle-feeding. If X was crying, the father would be concerned. The father did not do much housework. He did not mow the lawn. He did like to tinker with things.
The Opening and Evidence of the Father
Counsel confirmed that the father sought the property between the parties be divided fifty-fifty and that they keep their superannuation. Although he still owed money to his father, he still sought a fifty-fifty split as being in X’s best interests.
The father adopted his trial affidavit as true and correct. Cross-examination by counsel for the mother commenced with the text message (K-6) dated 6 November 2018 at page 72 of the mother’s trial affidavit. This was a text in which the father relevantly said:
I will contest every motion you put forward.
I will make every request as difficult as possible.
I will endeavour to drive every cent that you stand to gain into the pocket of a lowlife solicitor.
I do not hope to gain a single cent from you and will make sure that the comforts you once knew are stripped from you and you suffer for the things you have done to me.
As for our son, assuming he is biologically my progeny, has everything he needs in his life, he will be by my side and the foul stench of his whore of a mother is but a distant memory.
You and your mum can both choke on civil for all I care your both lowlife scum and deserve all that is coming your way.
I’d feel really bad for my boy but it’s again the scummy greedy choice of his mother and grandmother.
Amazingly, the father did not admit immediately that he had sent this message but required to know the time of day at which it was sent. In the end, he appeared to accept that he had indeed sent it.
When it was put to him that he had not provided any bank statements, the father confirmed that this was so but he said he had provided his superannuation statement. He did not recall receiving the Notice to Produce but might have done. He did not recall the conveyancing documentation but had provided copies of the certificate of registration for the animals directly to the mother. It was his general assertion that most documents from the relationship were still in the family home. He had assumed that the documents in the notice to produce were already in the possession of the solicitors to the mother because of the subpoena to Westpac. When it was put to him that he had not complied with orders for the filing of relevant documentation, the father equivocated but it was clear that this was the case. His firearms are presently held by Suburb U Firearms and they had provided a valuation to his solicitors some three weeks ago. His firearms licence is suspended. He plans on a transfer until he reobtains his licence. His father will hold the guns in the meantime and they will be kept in a safe.
The father denied removing the mother’s car on 3 December 2018. He did not know it had been removed, although he does now know. He had not discussed it with his father because they had had a falling out for several weeks at that time. The vehicle was to be put in for repair. He was not aware the mother needed the car to transport herself and X. She was at court the next day. His father removed the vehicle.
The father was cross-examined about the alleged assault in November 2018. He denied that Mr Q had been there at the time. He said there was an altercation when Mr Q was present, but he had not come with him on this occasion. He denied choking the mother. He had not placed his hands on her neck. He asked her to calm down. He had not mentioned the police and did not have his hands on her body.
The father likewise denied saying in October 2018 that he would slit the throats of the mother and her family. This was not something he had ever said and was out of character. He admitted the police attended on 1 August 2018, but he had not struck the mother. He had read the neighbour’s statement, but the neighbour was lying. He had not headbutted the mother. The father was cross-examined about a number of other emails sent in November 2018 and December 2019, set out at paragraph 121 of the mother’s trial affidavit. He did recall some of the messages. He did recall sending a text, which read:
If you ever do that again or make any attempt to stop me seeing my baby regardless of time or situation, so help me God, I will have blood on my hands..
He also admitted sending a text message on 18 November 2019 in the following terms, although he said he might have been drinking as it was the night before X’s birthday:
You’re a fucking mutt, dragging him out in the heat to satisfy yourself just look how flared up he is you are nothing but a cunt and i’m gonna fight you tooth and nail so he doesnt have to be around a bunch of selfish pieces of shit. I’m not going to think about other than tearing your solicitors to shreds and you get your just deserved in time to come, MUTT.
The father did not recall a threat to kill himself after separation but said he was pretty emotional and there was a bit of drinking going on. The father denied being an ice addict. He had seen Dr L’s report dated 28 April 2019. This suggested he had become more reliant on ice. He went to see Dr L because of the stress he had gone through. The situation was not good and he wanted someone to talk to.
The father then saw counsellor Mr P. He had not seen a dedicated drug and alcohol counsellor. The last time he used ice was in March of this year and he had also used in August. When it was put to him that he had told Dr K he last used in January, the father said he told Dr K it was December or January. He did not recall telling Dr G he had used in March and this was an error on his part. He smoked ice after court in August 2019. He was pretty drunk and was offered and accepted ice. He had undertaken the drug screens requested of him. He was not sure about a request dated 16 August 2019. He had been using Town FF as a collection centre because this was much closer to home. He could only recall one request for Dorevitch at Town GG.
The father said he had told Dr G he would be prepared to look into doing a hair follicle test if it was to X’s benefit. He believed he had told Dr G that he was drug free since December 2018 or January 2019. When it was put to him that he had lied to Dr G, the father said he did not completely disclose his drug use to him. He lied to Dr G and Dr K and was not proud of it. It was a one‑off and he had spoken about it to his father straight away. He has had a drug problem in the past but does not now. This is especially when he has X. He had undertaken drug screens for the DHHS, which were funded by them at Town FF. He is looking to re‑enter the workforce. (The father gave a description of his drug testing which I find believable and suggests that they were indeed supervised tests).
The father confirmed that he has been taking temazepam as required. Although he was prescribed an antidepressant in March, he does not take it. At the moment he is not taking sleeping tablets but takes a few bourbons here and there. He is more physically active and working hard physically. He gets food and board. He has taken loans from family and friends and will need to repay. His income until separation was $80,000 plus a car and he had a credit card for work. He could not recall if he used it for private purposes. At present, his father loans him money when he needs it. His home phone and internet was paid through work and his work sponsored provisions of dog food.
The father was questioned about being offered supervised time with X. When pressed, he was ultimately unable to recall.
The father disputed that the mother had found smoking devices for ice in September 2018. He said he did not recall. When it was put to him that on 14 September the mother had complained about his bag of drug pipes and money, the father could recall her confronting him. She said she had found drugs and paraphernalia. She showed him photographs but no bag. He does not have a bag with drugs and paraphernalia and cash, and he told her it was clearly not his.
He went so far as to say that the mother could have obtained the photographs off the internet and, indeed, asserted ultimately that this was what had occurred. This was not the end of the relationship. She had punched him on the back of the head on 6 September and that was the end of the relationship. He was not sure if he had told the Department of Human Services. When it was put to him it was not in any affidavit, he said he was not too sure that this was the end of the relationship.
The father said he was using ice on and off in September 2018. He was not using it in the house. He used it when he was working in Suburb V and bought it from a colleague in the factory. He denied that the photographs produced by the wife on her phone were for his items. He did not recognise the bag and denied that the photographs showed the inside of his car.
When it was put to him that there was no mention of a loan in his Financial Statement, the father said that this was potentially an oversight. He may have meant to say $200,000 where it said $20,000. The total amount was credit up to $300,000. He refinanced the house in 2012 in order to settle with his ex‑wife. The mortgage was $331,000 before this. He borrowed $400,000 and paid $68,000 to his ex-wife. The property was then worth $500,000 with a sworn valuation of $575,000. The shares referred to of $55,000, he did not still have and did not now recall them.
I interpolate and say that there was no convincing evidence given by the father about his failure to disclose the alleged loan on his loan application (exhibit A6).
The father was further questioned about the property and his answers remained evasive. He did not recall if he had a mortgage with Westpac. He has borrowed from the bank but has also borrowed from his parents. He only borrowed with Westpac for the house. He owed $330,000 by 2012. He did not produce any documents about the loans. When it was put that he will never have to repay his father, the father denied this. There was an agreement in place. He conceded the mother bought bits and pieces for the house.
The father was then further cross-examined about photographs of drug paraphernalia in September 2018. The mother had accused him. He denied telling her that they were his and admitting a long-standing drug problem. She had not said she found them in his car. She got these photographs from the internet. It was not photographs of his property. Having said this, the father then resiled from this assertion and said that they may be from the internet. There were a lot of things happening that did not make sense. The photographs were tendered as exhibit A8. The mother has said that she found them in a property that they shared and he had said they were not his belongings. He did not recall how it went with the argument because they had separated prior to that.
The father confirmed he had undertaken at least five drug screens in Town FF, then said seven to ten He has undertaken four since March 2019. When pressed as to other drug screens in Suburb HH, the father was non‑responsive and evasive. He said there had been a misunderstanding as a result of a request on 28 May 2019. He had thought it had to be taken by the 31st and the mother called him a moron. He then suggested it was in fact a different screen.
It was put to the father that he had failed to comply with Dr L’s recommendation about drug and alcohol counselling. He had attended Mr P, psychologist, and saw him once on 29 April 2019. He had not arranged any further appointments. He knew there had been ongoing counselling recommended.
The father was cross-examined about the incident on 19 May 2019 when he did not attend changeover at the nominated place. He had taken X to his mother. It was not true that the mother went to changeover and had to drive to his mother. He was found to have breached the Intervention Order and was interviewed about further allegations of breaches. He denied ignoring court orders when it suited him and said he had done his best with disclosure. When pressed, he accepted that he not taken up offers of supervised time. He had not provided his psychological reports until his affidavit for trial but had provided his psychiatrist’s report to his GP.
The father did not recall that the mother had paid $20,000 for landscaping and building materials and denied that she had paid $16,000 to the mortgage from the joint account. They had bred dogs and this was quite profitable. He did not agree that following X’s birth, the mother was the only earner. He agreed that the mortgage at separation was $389,000, give or take $10,000. It was not correct that he had not paid the mortgage. He had paid two payments of $2550 each with loans from his father. One was three months ago and one two and a half months ago. He gave the mother $5000 in cash for the home loan. There was trust between them at that point. It was not correct that he had not paid child support. The fridge had broken down and the mother needed $400, which he gave her at changeover.
X attends childcare and he can look after him. The mother gets government contribution and the childcare works out at $15 per day. He was hesitant to allow the sale of the house. The mortgage was in hardship and he expected to refinance it by a loan from his family. He will pay child support when it is available. He is gradually working his way back into employment.
The dog Z has been with X and the mother all of X’s life. He lives in a cage in the back of her parents’ house. He did not know if the mother loved Z. It would be distressing for the mother to lose the dog. He lives with his father and there are 60 dogs on the property. X will not miss the dog because he will see him when he is with him. There are 10 similar dogs at the mother’s parents’ home.
Under cross‑examination by counsel for the second respondent, Mr A Kaigler, the father said he had worked with his father since he was young. They clash a bit but are very close. His father is very supportive of him throughout the years and has always helped if he needs help. He did not recall how the father loaned him the money for the Suburb D property. He does not generally keep records. His stepmother keeps records of most amounts. His father did give him $5000 to assist with the mortgage.
K1, the loan document, was towards the end of his first divorce in about 2012. The date on it of 2007 was the date he started borrowing but the loan was not signed in 2007. If he needed money, his father would lend him up to $300,000 and he paid back by cash occasionally. The father said he would have to repay the loan if his father ever called on it. He borrowed $150,000 to $170,000. He believed the agreement said something about interest. There was an oral agreement to repay when the property was sold. The mother knew about this agreement but was not interested. He was not sure if she knew about the repayments.
The evidence of Dr K
Dr K adopted his affidavit as true and correct.
Under cross‑examination by counsel for the mother, Dr K indicated that the father’s use of ice on 5 August 2019 was not revealed to him. The father said his last use of ice was in January 2019. The father had seen Dr L once and Mr P once but had made no further appointments. Dr K was aware of the father’s urine screens. Methamphetamines would be picked up for several days but a hair follicle test would cover months. He is not an expert in testing but he would require laboratory testing.
The usual treatment for the father’s ice problem would be monitoring and psychological assistance. It would depend upon the psychologist if the father would need a separate drug and alcohol counsellor. The issue would depend upon the proximity of the drugs to the time with the child because urine testing only lasts a couple of days. Treatment of the condition would need openness and acknowledgement. Substance use is often denied and minimised. It was necessary to rely upon the individual’s desire to change.
Under cross‑examination by counsel for the father, who put the drug use in August 2019 into context, Dr K said he did not know if this was an isolated incident. Any usage is a concern. The acute intoxication lasts for several days. Mr Q’s term use would depend on how much usage there was. It affects moods. One‑off usage would not necessarily have any lasting effects. Hair follicle testing detects longer‑term usage up to three months but this is not his area of expertise.
The evidence of Dr G
Dr G adopted his affidavit as true and correct.
Under cross‑examination by counsel for the mother, Dr G confirmed that he had interviewed the father after 5 August and the father had not told him he had used ice on that date. The father had said he had been clean of drugs since March 2019. He was pretty sure it was March. If there were measures in place to ensure the father was drug‑free then he should have contact with X. Dr G agreed that it was appropriate to closely monitor the father’s drug use. He had recommended eight sessions at the time and thought this was once per fortnight but, in any event, the supervised time would last for 16 weeks. Counselling was monitored and six months would be okay.
Under cross‑examination by counsel for the father, Dr G said the father had told him he was clean from March onwards. He was sure of this. He did not necessarily assume that the father would be violent in the presence of X. He would seek consistency that the father was drug‑free and demonstrated engagement with counselling. He would be more confident if the father had drug and alcohol counselling. Consistent attendance was also important.
The child was very young at separation and there had been interrupted time with the father because of the intervention orders. He stuck by his assessment that there was an undeveloped relationship between X and the father. The father was good with the child and the child has some knowledge of the father and is fond of him. The child is at childcare for five days per week. There should be some review in six months about the ongoing drug issue because of the incident on 5 August 2019. Contact centres have long lists. The government can offer eight to 10 visits max. He is always wary of non‑professional supervisors. It would be difficult for family members to supervise.
Dr G readily conceded that his speculation at paragraph 53 to the effect that the mother might be in a cycle of violence was pure speculation. In the long‑term, overnight was necessary. The mother was quite open to time with the father but wants the child to be safe. He would support time with the grandparents. The primary issue is the child’s safety and the father’s parents could spend time during the supervised time.
The evidence of Ms J
Ms Kaigler adopted her affidavit as true and correct.
Under cross‑examination by counsel for Mr A Kaigler, Ms Kaigler said that she was aware of the loan to the father. She had been married to Mr A Kaigler for 20 years. They separated in August 2017.
The father had been building his house and a loan was good because they could repay. The company employed 35 people and she did the books and wages. The business started in 1998. Mr A Kaigler has four children and she has two. She had to look at the loan to see if it was viable. It was against the asset of his house. The father was an employee and he had a capacity to repay as she knew his wages. She looked at his expenses. No security was registered. She had noted the moneys down and collated an Excel spreadsheet in about 2009. Every time money was put in, she would register it. After 2009, Mr A Kaigler gave the father other money but this was what went into his house.
Solicitors had been paid in 2012 and she did not know why this was not on the spreadsheet. She was only concerned about the loan to the house. The loan agreement was signed in 2012 but was dated 2007 because of when the loan started. The father’s divorce was happening at the time and they were worried about recouping their money. It was $300,000 because he had a house. She left Mr A Kaigler in August 2017 and left all the records behind. He runs the business and she had trained two bookkeepers to do her job.
Under cross‑examination by counsel for the mother, Ms Kaigler recalled signing the loan and dating it. They had not done it with lawyers. She wanted to protect her asset. She has had property negotiations with Mr A Kaigler and they came to a binding financial agreement. They do not get along and she will get nothing if Mr A Kaigler receives a repayment of the loan.
At this point, counsel for Mr A Kaigler sought to elicit the evidence of one of the new bookkeepers, Ms W, but for reasons indicated briefly at the time, I refused to permit her to be called. I considered it entirely probable that the evidence would be self‑serving in any event.
The evidence of Mr A Kaigler
Mr Kaigler adopted his affidavits as true and correct. He then said in evidence‑in‑chief that all his children work in his business and all still have loans. The father’s loan was dated 2012 but was backdated to 2007 when the loan started. This is when his son had put a deposit of a block of land. A customer who was a financial advisor had given him the loan document. He had running sheets for all his children. He discussed it with his wife. They needed an agreement because there was nothing in place. He had not discussed it with his wife in 2007. The real one in 2012 was after the first divorce.
Between 2012 to 2017, he had been through separation. He then hired a chief executive officer and two bookkeepers. The loans were kept on an Excel spreadsheet by Ms W and another employee. Ms W had recently graduated at the commencement of her employment and has been with him for two years. The last entries for some six to 12 months were for all children. Mr Kaigler had made some payments but he could not give the exact dates. These were cash payments and he could not say how many. There is no time limit on the loan. It was a loan for the house. If he could not pay, then he would call the loan in. It was discussed when the father said he would sell the house. $300,000 and six per cent was what Mr KK had said (Mr KK being the client who provided the loan document).
Counsel for the father did not cross‑examine.
Under cross-examination by counsel for the Mother, Mr A Kaigler denied being affected by marijuana in front of X. He ate half a banana cake. He said, entirely convincingly in my view, that he likes banana cake. He smokes marijuana when he wants to but does not smoke in front of his children or grandchildren.
Mr Kaigler confirmed that he removed his car on 3 December 2018. He did this personally. He had not spoken to his son but has spoken to the mother. He knew the car was unroadworthy. He did not know about the Intervention Order hearing. X’s car seat and items were in the back and they were returned. It was a company car, not hers. There was $3500 damage. His de facto drove the car. He had taken her there. It was put by counsel to Mr Kaigler that if his son had not broken up with the mother, he would not have done anything about the money, and Mr Kaigler said he would, of course he would. All his children are paying their loans.
Mr Kaigler is back at the farm. He had come to court with him and was paying his legal fees. He had placed a caveat on the property in July 2019 when he knew it would be sold. He wanted them to get back together. The asset that secured the loan was the house. He saw his solicitor to lodge the caveat. Lots of documents were asked for. Most of the documents he has got. He came to court first with his son in March, having just reconciled with him. They had not been speaking before that for some months.
Ms J and the bookkeepers would know how much he gave his son. There is always some sort of transfer. Sometimes there are gifts. He has no idea how much money his son has repaid. He is a retail worker. He cannot write. His reading is poor. He loves the mother and she knows that. He has six children and 10 grandchildren. He had not bid at the auction for the property but someone had made bids for him. He did not know the exact figures. After the hardship status of the loan, he had lent his son more money to help make payments on the home loan. He loves his children and he has done things for millions of people. He turned over $200 million in 20 years. He helped everyone in his family. He would not let it go if the son did not repay him. Everyone has always paid him back or they are still paying.
Final submissions for Mr A Kaigler
Counsel submitted how the money was given to the children was complex. There are written loan agreements. Initially there was an oral agreement and then advice was obtained, so the agreement was executed. The repayment terms are clear and it was a loan between Mr A Kaigler and Mr Kaigler. Ms J maintained the ledgers. There was an interest and payment schedule and payments were made in cash. A mortgage should have been taken out.
Submissions from the counsel for the father
The father used drugs on 5 August, which was a bad day. He got drunk and smoked it. He had not told Dr K and Dr G and did not have to tell the court. A hair follicle test will show drugs in the last three months. Urine testing is necessary before the father sees X and the father accepts this. The father accepts hair follicle testing in three months time. The mother should not be allowed to insist upon excessive testing but the father does need to be drug‑free.
Mr T said the father was okay when he was not on drugs and he would never intentionally harm X. There was no need for supervision provided the father was drug‑free. Consent orders were made on 4 March 2019 and time was suspended after the conciliation conference. The mother said she was scared X would not be returned. The mother’s account of the events in May 2019 which led to the cessation of time were not truthful. She had agreed to the orders in March 2019 and had also agreed she had sent text messages to the father to the effect that there would be no time unless the house was sold.
Counsel traversed the alleged assaults and drew attention to the different accounts given by the neighbour and the mother of the event on 1 October 2018. The neighbour was not called and therefore not cross‑examined. The father denied the threat to slit the mother’s and her family’s throat in October 2018 and this was never reported to the police. Saying that there would be blood on his hands is not the same as saying you were going to slit her throat. It is not consistent with the mother’s attempt to reconcile in March 2019 nor the consent orders.
So far as the choking incident in November 2018 was concerned, the mother’s alleged bruising to the arm was not in her affidavit and she had not gone to the police. A third party had been present and took no action. There had been no violence in the presence of X and Dr G recommended joint parental responsibility. A parenting course might assist if both parents undertook it. The mother remained concerned about the father breaching the Intervention Order but an order was possible under section 68P of the Act.
Counsel surmised that things might be better when these proceedings have concluded. Time will not be supervised forever and there are no allegations of drug use around X. The father had clear screens before his August relapse and did not see the point of screens because he was not seeing X. There could be a requirement for tests 24 hours before time. There was a strong relationship between the father and X, who was fond of him. The child knew the father. There were no problems with the grandfather. He just ate half a cake.
Counsel submitted that the court should seek to avoid further hearings. Overseas travel was not opposed nor usual passport orders. In the alternative to what he was seeking, the father was prepared to enrol in a contact centre.
Counsel referred to authority on the question of the loans and referred to the case of Malcher & Malcher [2016] FamCA 1063. It was submitted there were many factors that led to the loan in this case being so characterised. There was an expectation of repayment. There was a formal loan agreement. There was security in place. There had been conversations between the parties. Ms J was clear that repayment was part of the terms. The loan agreement was commercial in its character, having a line of credit. Security had not been taken out. Interest of six per cent suggested commerciality. Mr A Kaigler said the property was there for the loan to be recalled.
The matrimonial home was owned by the father before the relationship and it was not an overly long relationship. Because of the child, there would be a fifty‑fifty division. There should be an add-back of legal fees (quantified in her evidence as $85,000 by the mother) so that the mother obtains 25 per cent. The father is older and there is no current superannuation valuation. There should be no superannuation split. The father had substantial superannuation at the start of the relationship. The firearms were owned prior to the relationship.
Final submission for counsel for the mother
Counsel submitted that X was very young and vulnerable. Dr G said there should be supervised time. The mother was the better witness and there had been serious family violence. The father has a drug and alcohol problem and sends texts but says they might have been when he was drunk. The father had not undertaken ongoing counselling. The mother’s evidence about 4 March 2019 orders was clear. The father has serially non‑complied with orders and had breached the intervention order. He had failed to return X on 19 May.
The father had instigated a campaign in his first text and had not made financial disclosure. The mother did not want the father sent to jail. The evidence about the father’s drugs was clear. It had lasted six to seven years and his psychiatrist said it was a major problem. There was very recent use which was not in his trial affidavit. He knew that the question of hair follicle testing would be pressed. He did not tell Dr G or Dr K about his drug use. The father had been shown the photographs of drug paraphernalia and his explanation was fanciful.
He had undertaken four drug screens between March and June 2019. The reports at the N Medical Centre were not in accordance with appropriate standards. They had not tested for adulterants. There were no screens after July 2019 until 12 September 2019. The father refuses or fails to attend further drug screens at Town GG. It is not clear that he is drug‑free. The mother seeks an order for sole parental responsibility and suspension of the March orders in the interim. A paid supervisor was acceptable and the father was to engage in counselling. The parenting orders program was not opposed.
Counsel then turned to deal with property issues. He was scathing of the loan agreement, pointing out that the time for its completion in 60 months was repayable on the date of execution. The term of the agreement was not certain. It was not executed as a deed because it was not signed and sealed. This is the law in Victoria. There had been substantial further indebtedness following the father’s failure to pay the mortgage and he had resisted sale in March.
So far as contributions was concerned, the father owned the home prior to the relationship but the equity was not large. There was a refinance in 2013 for $400,000 and the property was worth about $500,000. The relationship lasted five and a half years and the father’s income paid the mortgage and the mother paid the bills. The mother had paid for landscaping and so on while the father remained in the shed. He slept till midday and there must be a query whether this was drug related. The mother had done more as a homemaker and returned to work and put X in childcare after two weeks.
Turning to future needs, the father has income capacity. He was being paid $80,000 plus a car and ancillary benefits. He is able to work. The mother works five days a week for $60,000 and there is no child support paid and none likely. Her legal fees are relevant pursuant to section 75(2)(o). Counsel appeared to me to accept that the father’s guns really have always been his property.
The mother is the primary carer of X and she seeks 70 per cent of the pool. The father has family resources and is likely to have security of employment with greater earning capacity.
It should be noted that the final submissions were different to the mother’s earlier seeking of a 65/35 split.
Findings about the witnesses and the evidence
The mother was an excellent witness. She was careful and composed. She readily made concessions when they were properly there to be made, although I note her concession about her text in which she sought to blackmail the father by indicating he would not see his son if he did not sell the home was one that she had little choice other than to make, given that it was recorded. Nonetheless, I repeat, she was a careful and composed witness who was clearly telling the truth.
The father’s evidence was unfortunately far less satisfactory. It was evasive and non-responsive and, in general terms, where there is a conflict between his evidence and that of the mother, I prefer that of the mother.
Mr A Kaigler was a good witness in his way. He has done extremely well in life despite being very close to illiterate and being unable to write. As I have indicated, I found his answer about the banana cake entirely convincing. Nonetheless, he loves his son and of course his appreciation of the facts and circumstances of the case is necessarily partisan.
Ms J struck me as being an honest witness but some of her recollection strikes me as being faulty. It should be noted that the events surrounding the loan go back certainly as far as 2012 and in their origin as far as 2007. It is understandable if her memory is not now entirely clear.
Having made these observations, I would make the following findings.
The parties’ relationship commenced in 2013 and proceeded uneventfully (bearing in mind that the mother was for quite a substantial time a fly‑in fly-out worker in Western Australia). The father already owned his property and, as part of his divorce settlement, he borrowed extra funds to maintain the entirety of the property in his own name.
The father has undoubtedly had a significant history of drug use, whereas the mother has been not a significant drug user.
The relationship was, on any view of the matter, tempestuous, since both of the parties essentially admit this. The mother has admitted an assault on the father, albeit as a response by him to her.
Their matter stood until the mother discovered what she at least thought was the father’s infidelity in September 2018. Their relationship then ended. On 1 October 2018, the father headbutted and slapped (it does not matter whether it was once or twice) the mother. Her evidence was compelling and it is supported by the contemporaneous police statement of the neighbour.
The father unquestionably sent a series of grossly offensive messages by way of text to the mother in the November, December 2018 period. I have no doubt he threatened to slit the mother’s throat and that of her family as well. His threat to have blood on his hands is not as differentiable as counsel for the father sought to put it. One area I have less certainty about is the alleged choking incident in November 2018. Given the overall history of the matter, however, and notwithstanding its seriousness, it is not necessary for me to make a conclusive finding about it. The father’s violence is quite bad enough in any event.
Unsurprisingly, the mother was hesitant about the child spending time with the father. She endeavoured for reasons that remain wholly unclear to contemplate a reconciliation in about March 2019 but this went nowhere. It was in that context, no doubt, that she agreed to the relatively generous orders in March 2019.
Thereafter, things went badly. The father’s endeavours to control the mother through the somewhat obscure dealings about the sale of the property and the associated financial pressure on the mother led to her ceasing time in May 2019. I have no doubt that there was an incident of some sort on 19 May 2019 but it needs to be seen in the context of difficulties in the sale of the house and the mother’s clearly expressed intention to use the child as a bargaining chip.
Notwithstanding the father’s cessation of time, the child still sufficiently remembers the father and obviously is fond of him, as Dr G reported.
Against these findings, which of course do not determine all the matters between the parties, I turn to the statutory pathway as set out at paragraph [65] of Goode & Goode [2006] FamCA 1346.
Parental responsibility
The mother seeks sole parental responsibility and the father seeks equal shared parental responsibility. The presumption in favour of the order for shared parental responsibility is plainly rebutted in this instance by the family violence that I have found to have occurred. That, however, is not the end of the matter.
At paragraph 65 of his report, Dr G dealt with the question of parental responsibility in some detail. He noted that an order for sole responsibility is a very serious step. That is so but in my opinion that does not mean that it should not be made in appropriate circumstances. Here there has been severe physical abuse but, mercifully, it could not, I think, fairly be described as ongoing. I accept Dr G’s evidence that there has been some measure of communication between the parents, albeit in many ways very unattractive. The fact that the father would find an order for sole parental responsibility difficult to accommodate from a personal standpoint is, in my view, a self‑serving matter and not one requiring great weight. Nonetheless, Dr G made a clear recommendation for joint parental responsibility and he was not cross‑examined by either party in relation to this assertion.
X is young and there are many miles to go in his young childhood. At present, the relationship between his parents is largely sundered. It remains unclear whether or not it will ever improve, although I accept that the end of this litigation is likely to be helpful of itself. What sways me in the ultimate to making an order that gives primacy to the mother’s view is the father’s stated intention never to agree or give her anything and his failure under cross-examination expressly to distance himself from these extremely regrettable views.
The father’s text messages to the mother suggest a strongly controlling personality or at least someone who would wish to be so. This is not a good harbinger for cooperation and sensible discussion as to X’s best interests. In my opinion, because X will undoubtedly be living in the primary care of his mother for the foreseeable future, the present and likely continuing considerable distance between the parents, things like choice of school and the like and choice of GP must surely rest with the mother.
In all the circumstances and notwithstanding Dr G’s expressed view, I think that X’s best interests will be met by making an order that the mother is to have sole parental responsibility but, in relation to any long‑term issues relating in particular to health, education and religion, consult with the father in the first instance and pay appropriate regard to his views, albeit that the mother has the final decision.
The spend time regime, the primary considerations
Everyone, including the mother, agrees that it is in principle desirable for X to have a good relationship with each of his parents. The father undoubtedly loves X and wants to have a relationship with him.
There is no suggestion that the father has actually ever been violent to X. He has undoubtedly committed acts of violence (as has the mother on one occasion) when X was either present or at least somewhere very nearby. The big issue in the case is less the now increasingly and thankfully increasingly historical family violence perpetrated by the father, but rather his difficulties with alcohol and more particularly with illicit drugs. This is a factor that will require careful consideration in the formulation of orders. It is not, however, an insuperable difficulty.
The additional considerations
Section 60CC(3)(a)
Self-evidently at his age X has expressed no views.
Section 60CC(3)(b)
X obviously has an excellent and loving relationship with his mother who has always been his primary carer. He appears fond of his father despite the fact that he had not seen him for quite some time (in the scheme of his life) when Dr G saw him with the father. It appears from what the mother says that her own mother, in particular, has a close relationship with X and given that Mr T lived with the parties for a considerable period of time and appears to be still in the picture, he may well some sort of relationship with him.
Section 60CC(3)(c)
The issue of making major long term issues in relation to X has not really presented itself. The father has prosecuted his case to judgment and, in my view, there can be no suggestion that he does not genuinely wish to be involved.
Section 60CC(3)(ca)
The mother has plainly looked after X all his life and has done so in a fashion that attracts no real criticism. The father’s cessation of work and his refusal to provide for the family stands against him. He was not able to provide any meaningful explanation as to why he had ceased work. It may be that he was simply overborne by the circumstances in which he found himself but, on any view of the matter, he has not contributed to X’s wellbeing in a financial sense since separation.
Section 60CC(3)(d)
The likely effect of X spending time with his father is good. Dr G has already recommended time with his father subject to appropriate measures in place to cope with the father’s alleged drug use and it is clear, notwithstanding the mother’s concerns, that this is desirable.
Section 60CC(3)(e)
I doubt that there will be any financial difficulty in X spending time with his father. Given that it seems more probable than otherwise that the father will resume paid employment with his own father in the relatively near future, he is likely to have sufficient funds to pay for supervised time. In any event, his own father will undoubtedly assist him if need be. Mr A Kaigler struck me as a man devoted to the interests of all his children and that includes the father in this case. There may well be some difficulties associated with time given the long distance between where the father lives and the mother lives but if the father wishes to see his child he will overcome them.
Section 60CC(3)(f)
Plainly, the mother is well capable of looking after X’s needs in a material sense. Her inclination to use him as a bargaining chip in her financial dispute with the father suggests, at least on that occasion, an incapacity to put X’s needs ahead of her own. The father’s capacity to provide for X’s needs is as yet somewhat untested given that he has spent very little time with X of recent moment. Like many a parent before him, he will have to learn on the job. I note, however, that he had properly prepared for the time he spent in the company of Dr G and this augurs well for the future. It is, however, imperative that the father remain drug free and this is the forefront of the matters the Court is concerned with.
Section 60CC(3)(g)
I have just touched on the most important substantive issue that arises under this subsection. The father has not convincingly narrated his drug use and I remain concerned that the mother’s fears are perhaps made out. He has reused ice as recently as August 2019 and while, in a sense, it is to his credit that he has admitted it, the usage is nonetheless concerning. He needs to understand that if he wishes to see the child he will have to get on top of his drug problems comprehensively. Any failure on his part to do so will not only rebound against him but will be a source of very major concern and anxiety to the mother which is not in X’s best interests.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is always an important subsection but, as is so often, it has already really been addressed. The mother is a devoted mother although, as I say, she has allowed her emotions to get the better of her during the property dispute. The father, whatever his weaknesses, plainly loves the child enough to take the matter to judgment.
Section 60CC(3)(j)
This is important because I have made findings of family violence, notwithstanding the significance of such findings. It should be remembered that while the mother was, on one occasion, able, as it were, to hold her own by responding, the mother’s ongoing concerns about family violence need to bear in mind that violence is very differently perceived by the victim than it is by the perpetrator.
Section 60CC(3)(k)
There have been Intervention Orders in this case but they do not, given the findings made about family violence more generally, take the matter further.
Section 60CC(3)(l)
I think it is in everybody’s best interests to have final orders now, notwithstanding Dr G’s suggestion of a further revisiting of the issue in time.
Section 60CC(3)(m)
This raises the critical question of the father’s drug use. In my opinion, on an interim basis the father should be required to undertake the supervised appropriately administered drug screens prior to spending time with the child on at least the first three occasions that time takes place. Subject to those remaining clear, there should be, in some three months from the date of this judgment, a hair follicle test undertaken with any necessary ancillary orders to enable this to occur.
Otherwise, I propose to make orders generally in the form sought by the mother as they are plainly workable and sensible.
Property issues – Stanford & Stanford
The legal and equitable property of the parties is really essentially the matrimonial home. The mother has a car but it is fully encumbered.
As indicated during the running of the hearing, the father’s firearms were wholly owned by him before the relationship started. Even if they do have a value of some $25,000 as the mother’s Outline of Case estimates, they are his now and always were and were not in any way contributed to by the mother. Plainly he should retain them. The relationship was one of some five and a half years at its most and it is simply not long enough to make an adjustment in respect of those chattels appropriate.
In this case, as in so many, as was foreseen in Stanford, the fact is that the parties have now radically readjusted their finances and the way they deal with one another. They both seek a property adjustment and it is plain that there should be one.
The matrimonial home has been sold for some $670,000 and the mortgage is somewhere in the region of $400,000. I have observed in passing that I accept the father’s evidence that he paid $5000 towards the arrears in the meantime and, while the mother complains that the mortgage has increased, the fact is that she has not paid any rent. Any increase in the mortgage since separation is, in my view, not to be taken into account.
The mother has some $83,000 of legal fees to pay which she submits are a relevant consideration under section 75(2)(o). $20,000 of this has been loaned by her brother but there is nothing before the Court as to its repayment.
The mother’s superannuation is $45,227 as at 6 December 2018 (probably now slightly higher) and that of the father is $129,126.
Contribution issues
The father owned the former matrimonial home at the time of the commencement of the relationship. He made all the mortgage payments on it, albeit the mother contributed by working throughout and paid the other expenses. Although the mother sought to put it that the father was little more than useless as a homemaker, and the evidence about the time he used to get up and the time he spent in the garage was convincing, the fact is that he had a salary of $88,000 plus a car and other matters until he ceased work.
The mother was plainly the primary caregiver although I notice that the evidence of Mr T rather diluted the force of the mother’s criticisms of the father as a child carer. I would have generally assessed the parties’ contributions as equal but for the question of the monies advanced by the father’s father from time to time. This brings us inexorably to the question of the alleged loan.
The alleged loan
It is important to remember the way that both Ms J and Mr A Kaigler sought to put this loan. It was put that a line of credit was advanced in 2007. It was Ms J’s evidence that this was, in effect, at least implicitly secured over the matrimonial home. She referred to this as the security they needed to have. It was Mr A Kaigler’s evidence that he provided loans of a similar kind to all his children and they were all either now repaid or in the process of being repaid. Nonetheless, he was quite unable to remember how much he had been repaid by Mr Kaigler from time to time and, indeed, Mr Kaigler was no better a historian than he was.
Against this general introduction I turn to the loan agreement. First, it is obvious that it is not, in a sense, a truthful document because the date it bears, namely 17 July 2007, is not the date it was in fact signed, which was in 2012. It is quite obvious, and, indeed, all the Kaigler interests effectively confirm this, that this was entered into in the context of Mr Kaigler’s first separation and divorce. It was plainly a device designed to buttress his position in any property proceedings arising from that separation.
Turning to the document, it is noteworthy that the person described as the lender was Mr A Kaigler alone. Contrary to this, however, Ms J’s evidence was that she was a joint lender with her then husband, Mr A Kaigler. In fact, she merely witnessed the document in 2012.
The repayment date was 60 months from the drawdown date, which latter phrase was defined by clause 1.1.11 as being “the date that the principal sum or any part of the principal sum is advanced by the lender to the borrower”.
One thing we do know from Mr A Kaigler is that some sort of amount of money was advanced as part of the line of credit provided for by the loan agreement in 2007. As counsel for the mother correctly puts it, the term for repayment was effectively present immediately upon the alleged date of the commencement of the agreement, ie, by 2012 some 60 months had gone by.
As if this was not enough, the loan document prescribed interest at six per cent per annum. It clear beyond doubt that no interest was ever paid.
Furthermore, although, according to Ms Kaigler and implicitly Mr A Kaigler, the loan was repayable upon the sale of the security, ie, the former matrimonial home, this has not taken place.
The evidence that is rather more compelling is that of Mr Kaigler Senior to the effect that he is a devoted father who provides help for many people including his children. Having heard and seen both Mr Kaigler, Ms J and Mr A Kaigler give their evidence, I have simply no doubt that this loan was never going to be the subject of any requirement for repayment. It was very much on the footing that Mr Kaigler could repay as much of it as and when he thought fit.
Being a loan more properly characterised as I find as one that had no date as to repayment, and having started in either 2007 or 2012 as the case may be, it is plainly no longer enforceable as was explained by the Supreme Court of Victoria in Ogilvie & Adams [1981] VR 1043.
Having said all this, I nonetheless accept that the payments recorded in the ledger, being annexure K1 to Ms Kaigler’s affidavit, were indeed payments that were made. They are consistent with the evidence taken as a whole. Some $100,000 odd was advanced to build the property in the years 2007 to ’08 and various extras were provided thereafter. It is, of course, possible that other ledger entries have been made since, but these, as I indicated earlier, would have been made in the context of this litigation and the dispute then underway between the parties. I note that it was Ms Kaigler’s position that any other monies advanced were, in any event, gifts by the father to his son.
Doing the best one can in circumstances where the loan documentation was taken out as a deliberate sham to preclude the interests of Mr Kaigler’s first wife, and noting the problems that parties get into when they embark upon courses of conduct that are by no means what they seem, in my view, it is plain beyond doubt that there was never an enforceable loan but the substantial amounts of money were advanced by Mr A Kaigler to his son’s benefit in the early days. Given that the sole asset now available springs wholly from these advancements made by Mr A Kaigler to his son, I would calibrate the contributions of the parties to be 60 per cent to the father and 40 per cent to the mother.
The future needs factors
The mother has and will continue to have for many years the primary financial responsibility for the care of X on an ongoing basis. While I suspect the father will return to employment, I suspect that child support will always be very thin on the ground. That, after all, has been the history so far and our experience of the past informs our assessment of the future. The father will of cause continue to have the significant benefit of support, as needed, from his own father. Both these parents are in at least reasonable health. Much of their difficulties at the moment seem to be interrelated with the stress and concern of these proceedings. The mother already has employment and this may increase as time goes by. In all the circumstances, I think that a loading of some 30 per cent should be given to the mother in respect of future needs.
Just and equitable
In my opinion, a division of the sale proceeds of the former matrimonial home 60 per cent in favour of the mother and 40 per cent in favour of the father is, in all the circumstances, fair and reasonable. It will give the mother some opportunity at least, hopefully, to reconsolidate her life and possibly find a place for X to live in. It does, however, give the father a measure of return bearing in mind that he owned the property that effectively forms the pool for some five years before the mother entered into a relationship with him which lasted for no more than five and a half years at the most.
Turning to the question of superannuation, there is no evidence before me as to the parties’ respective superannuation entitlements at the commencement of the relationship. Nonetheless, I know that the father has not worked since … 2013. Given the absence of any actual evidence, one has to return to the perhaps rather slack water of first principles. In my opinion, it is far more probable than otherwise that both these parties earned most of their superannuation before the relationship commenced. However, there must have been a certain measure of accrual during the relationship itself.
If I understand the matter correctly, both these parties have been in employment through their adult lives. The father was born in 1982 and, assuming he entered into employment around about 2000, about three-quarters of his superannuation would have been earned in periods when the relationship did not subsist. The mother was born in 1987 and, assuming she entered into employment likewise at about the age of 18 in 2005, she has been in employment for approximately half of the subsequent period during the relationship.
In all these circumstances, and bearing in mind the 60/40 division in the mother’s favour, in my opinion, it is not just and equitable that there be a superannuation split. The parties were not together for so long that one can realistically meaningfully assess that either has contributed in any significant way to the ultimate superannuation had come with the other. Further and in any event, the sort of guess work that the Court would be required to undertake to allocate an appropriate adjustment would be extremely unsatisfactory.
The disparity in the parties’ earnings during the relationship appears to have been relatively insignificant (I note I do not have information as to the mother’s earnings when she was a fly-in fly-out worker but would assume these may have been relatively high) and it is very possible that the amount that the parties’ superannuation accrued during the relationship was, in fact, very similar. As I say, in all the circumstances, there will be no superannuation adjustment.
Conclusion
I have drawn draft orders to reflect all of my conclusions but, in view of the multiplicity of issues the parties have raised, I will give the parties an opportunity to study these draft orders and hear from them further before making them final.
I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 10 December 2019
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