Snyder & Argyle
[2022] FedCFamC2F 1700
Federal Circuit and Family Court of Australia
(DIVISION 2)
Snyder & Argyle [2022] FedCFamC2F 1700
File number(s): NCC 3346 of 2019 Judgment of: JUDGE BETTS Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – Parenting – one child, aged six years – where the father has perpetrated a high level of family violence upon the mother – where the father has a significant history of alcohol abuse – where the mother seeks a “no time and no communication” order – where the Independent Children’s Lawyer supports the mother’s position – where the father seeks that his time graduate from supervised time to weekends and overnight – where the Court must consider the risks posed by the father and whether the mother’s parenting capacity would diminish significantly if an order for time was made – where the Court must act protectively – best interests of the child. Legislation: Evidence Act 1995
Family Law Act 1975 (Cth), Pt VII
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Helton v Allen (1940) 63 CLR 691
Keane & Keane [2021] FamCAFC 1
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Russell v Close (1993) FamCA 62
Sedgley & Sedgley (1995) FLC 92-623
Division: Division 2 Family Law Number of paragraphs: 232 Date of last submission/s: 19 October 2022 Date of hearing: 26, 27, 28 and 29 April 2022 and 17, 18 and 19 October 2022. Place: Newcastle Counsel for the Applicant: Mr Mueller Solicitors for the Applicant: Newcastle Legal Counsel for the Respondent: Mr Taylor Solicitors for the Respondent: Reid Law Pty Ltd Counsel for the Independent Children’s Lawyer: Ms Callander Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle Family Law ORDERS
NCC 3346 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SNYDER
Applicant
AND: MS ARGYLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.All prior parenting orders in respect of the child X born in 2016 (“the child”) are discharged.
2.The Mother have sole parental responsibility for the child.
3.The child live with the Mother.
4.The child spend no time and have no communication with the Father, X.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of the child, the Father is hereby restrained from attending at or being within 100 metres of the child’s residence, the child’s day care, the child’s preschool, the child’s school and from any location attended to by the child for sporting or other activities she participates in. For the purpose of this order, the Mother is authorised to provide a copy of this order to any daycare, pre-school or extra-curricular care provided attended by the child from time to time.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of the Mother, the Father is hereby restrained from attending at or being within 100 metres of the Mother’s residence, the Mother’s workplace or attending upon any function attended by the Mother. The Father must not contact the Mother in any way or form whatsoever.
7.Pursuant to section 11(b) of the Australian Passports Act 2005 (Cth), the Mother is permitted to do all acts and things and sing all documents to apply for and retain Australian travel documents, including Australian passports for the child, without obtaining the Father’s consent (written or otherwise) and to facilitate the order leave is granted for the Mother to provide a copy of these orders to the relevant statutory authority.
8.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the Mother is at liberty to travel outside of the Commonwealth of Australia with the child whether or not the Father has consented to any such travel.
9.The Mother is authorised to apply to the Registrar of Births Deaths and Marriages for the State of New South Wales to change the name of X born in 2016 to X (or such other surname as used by the Mother) notwithstanding the consent of the Father has not been obtained.
10.The Registrar of Births Deaths and Marriages for the State of New South Wales (upon the application of the Mother referred to in order 9 above) is to do all acts and things to register the change of name of X born in 2016 pursuant to section 28 of the Births Deaths and Marriages Registration Act 1995 (NSW) notwithstanding the consent of the Father has not been obtained.
11.The Independent Children’s Lawyer is to bear its own costs of the proceedings.
12.The Independent Children’s Lawyer is discharged from the proceedings.
13.A copy of today’s reasons be provided to the parties as soon as possible.
14.NOTING that the Mother is seeking a costs order from the Father, her costs application is listed for hearing at 9.30am on 15 December 2022 with the Mother’s legal representatives to provide the Father and the Court with short written submissions as to costs, by no later than 13 December 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Snyder & Argyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION:
These are parenting proceedings concerning a young and vulnerable child, X, born in 2016. X is presently six (6) years and six (6) months old.
The applicant in these proceedings is X’s father, Mr Snyder (“the father”). The respondent to the proceedings is X’s mother, Ms Argyle (“the mother”).
The parties are “poles apart” in what they propose for X’s future parenting.
By way of brief background, the parents commenced a relationship in 2009, although they did not formally cohabit until the mother fell pregnant with X. They lived together from about 2016, a few months prior to X’s birth, and finally separated in 2016 when X was just three (3) months old. After separation the father had some limited supervised time with X, essentially supervised by the mother for around an hour or so a week at the most.
In November 2017, the parties entered into a Parenting Plan whereby X was to spend time with the father for one and a half (1 ½) hours to two (2) hours per week supervised by the mother or the maternal grandfather. The father spent time with X up to May 2019 when, after he cancelled a visit for X’s birthday, the mother decided to effectively cease the father’s time with her.
The father commenced these proceedings in November 2019, seeking equal shared parental responsibility for X together with spending unsupervised time with her. In April 2020, I made orders for the father to spend no time with X. I made another order to the same effect in January 2021. Accordingly, the father has not spent any time with X at all since May 2019.
I indicated earlier that the parties were “poles apart” in what they seek for X. The father is agreeing that the mother have sole parental responsibility for her and agreeing that X continue to live with the mother. He does, however, want to spend time with X, initially supervised by B Children’s Support Services (a professional supervisor) and thereafter he seeks to spend some graduating time with X to include weekends and overnight time, initially to occur at the home of his sister‑in‑law, Ms C. The father is seeking that this time graduate to unsupervised time. The timeframe set out in his proposed order are now somewhat out-of-date, but essentially he would be seeking that unsupervised time begin to occur within a matter of months and that he spend some school holiday time with X thereafter.
The mother agrees that X should live with her and that she should have sole parental responsibility, but she specifically seeks a “no time” order for the father. She seeks restraining orders to prevent the father from collecting X from school or from any extra-curricular activities. Indeed, she seeks that the father be restrained from attending within one hundred (100) metres of the mother’s home or of the day care, preschool or school that X attends from time to time or from any sporting or other activities that she attends. She also seeks that the father be prohibited from contacting her or X in any way or form whatsoever. She seeks the ability to be able to obtain a passport for X and to travel overseas with her and she seeks to change X’s surname from Snyder to Argyle, being her surname.
The effect of the mother’s orders is that the father-daughter relationship will be severed.
The Independent Children’s Lawyer (“ICL”) broadly supports the mother’s orders, though “sits on the fence” insofar as the change of name is concerned.
This is therefore one of those unfortunate cases in which the Court is called upon to decide whether it would be in a child’s best interests to have any relationship with a parent. It might be obvious enough from this introduction that there are serious issues of risk that are raised in this case in terms of the father, and for the reasons which will follow, those allegations of risk have been made out.
THE HEARING:
The hearing initially proceeded before me for three (3) days on 26, 27 and 28 April 2022. It was part-heard and concluded on 17, 18 and 19 October 2022.
At the hearing the father was represented by Mr Mueller of counsel, the mother was represented by Mr Taylor of counsel and the ICL (Phillip Squires) was represented by Ms Nicola Callander, solicitor advocate.
At the outset I express my gratitude to each of the advocates for the thorough way in which the case was prepared and for the cogent and helpful submissions made by each of them. I consider that the evidence has been well and truly tested in this case.
For the purposes of the hearing, the father relied upon:
(a)his Outline of Case Document filed 22 April 2022;
(b)his trial affidavit filed 22 April 2022;
(c)a further affidavit of the father which was filed on 27 April 2022, being a response to the affidavit of the father’s ex-partner, Ms D;
(d)the affidavit of Ms C filed 3 April 2022, being the father’s sister‑in‑law;
(e)the affidavit of Mr E filed 15 May 2020;
(f)the affidavit of Ms F filed 3 April 2022; and
(g)the affidavit of Mr G filed 3 April 2022.
The mother relied upon:
(a)her Outline of Case Document filed 22 April 2022;
(b)her trial affidavit filed 29 March 2022;
(c)the affidavit of the maternal grandfather, Mr H, filed 29 March 2022; and
(d)the affidavit of Mr J filed 19 August 2020.
The mother also relied upon an affidavit of Ms D, who was in a relationship with the father from late 2017 to around October or November 2019. That affidavit had been filed in a separate proceeding involving Ms D’s son, K, and this affidavit was marked as exhibit 4 for convenience.
The ICL relied upon:
(a)the Outline of Case Document filed for the purposes of the hearing. This document set out a particularly detailed, and in my view helpful, chronology for which I express my gratitude.
In addition to this material the parties tendered numerous exhibits during the course of the hearing. These included a Family Report reported by Dr L, Clinical Psychologist, of 5 June 2021. They included numerous subpoenaed documents, as well as a transcript of the first three (3) days of the hearing. There are numerous exhibits. I do not propose to address each and every one of them. I will refer to the exhibits as I consider them to be relevant.
Before proceeding further, I wish to make a couple of observations about the primary witnesses, namely the mother and the father.
As a general statement, I did not find the father to be a particularly impressive witness. The primary allegation against him in these proceedings is that he was a perpetrator of high level family violence, not only against the mother, but also against his previous partners Ms M and Ms D. The father’s evidence as to various allegedly violent incidents was not reliable. In particular, there was an event in 2013 in which the parents had a physical altercation and the father was holding the mother by the neck out in the front yard in the early hours of the morning. This is the event which involved the witness, Mr J, who, in fact, rushed to the mother’s aid armed with a baseball bat, such was his level of concern about what he was witnessing. When asked whether the father was holding the mother around the neck, the father “could not remember”. In my view, his memory of this matter and various other matters, is most selective. I will address the father’s violent actions in more detail in the course of these reasons, but as a general statement, I prefer the evidence of the mother and Ms D over that of the father.
In terms of the mother’s evidence, I was generally impressed that the mother was telling the Court the truth. It was quite apparent at various points of the proceeding that the mother was extremely upset and anxious. At some points, when being cross-examined about family violence - which I should observe was prolific in this relationship - the mother became somewhat “jerky” in her movements in the witness box, she whistled involuntarily and made a number of noises of an unusual nature, as well as rocking back and forth. She had at paragraph 126 of her trial affidavit deposed that, reflecting on the events of her relationship with the father triggered her PTSD, that she still had flashbacks of the abuse which caused high distress and discomfort and that at certain times, she would exhibit physical signs of distress which include “stimming”, which she described as making sounds/noises and other notable behaviours: rocking, moving, tapping, etcetera.
I witnessed these things myself and I am satisfied on all of the evidence before me that the mother was reacting in that way because of having to re-live the trauma of the father’s violence meted out to her during the relationship, which took a number of confronting, destructive and painful forms.
This is not to say that I accept all of the evidence that the mother gives. There are a few aspects of her evidence which are not entirely reliable. For instance, she suggested that she used to be “happy-go-lucky” before she met the father. I do not accept that evidence. It is quite apparent that the mother had suffered from anxiety and depression and possible PTSD before she met the father, all secondary to a horrific and most tragic motor vehicle accident in 2006 in which she was involved in which she lost a dear friend.
The father’s counsel Mr Mueller suggested to me that the mother’s evidence that she was “happy-go-lucky” before the relationship was false and was something that reflected adversely on her credibility. I do not entirely agree. Though I do not consider her “happy-go-lucky” evidence to be reliable, I am satisfied on all of the evidence before me that the mother was not being deliberately dishonest with the Court. Rather, her relationship with the father was punctuated by so much violence and demeaning behaviour that in hindsight she looks back to the days before the relationship as some sort of happy period. This is not her being dishonest. It is, in fact, broadly corroborative of what a dreadful and abusive relationship she was in with the father.
Another credit matter referred to by Mr Mueller was a particular event which occurred in October 2012 where the father was charged with an assault in relation to some juveniles. The mother certainly did not give the full account of events in that respect, but nothing really turns on this. I will address that particular event later.
Broadly speaking, I was impressed with the mother as a witness.
CHRONOLOGY OF EVENTS:
I turn then to the chronology of events, which of necessity will be somewhat detailed.
The father is a forty (40) year old tradesman who lives at Town N. The mother is a 36 year old teacher who lives near City O.
Prior to the parties meeting, each of them had experienced some difficulties in their life.
I have already referred to the mother’s horrific and tragic motor vehicle accident, which I am satisfied had a significant impact upon her. The mother accepts that she turned to alcohol as a method of helping her cope after the loss of her friend, and it seems reasonable to accept that this was a coping mechanism for her.
The father had entered into a relationship with one Ms M. This was the first of the three (3) violent relationships that I am aware of that the father has entered into, the other two (2) relationships relevantly being his relationship with the mother and his relationship with Ms D.
Early on in the relationship between the mother and the father, Ms M confided to the mother that the father had assaulted her many times and that the mother needed to be careful. The mother confronted the father and his parents about this who, effectively, deflected the allegations back onto Ms M.
Notably, the mother saw some AVO documents relating to the father and Ms M in which the allegation was made that the father had hog-tied one of Ms M’s relatives (who was then a minor) for touching items in the house.
Even on his own admission, it is quite apparent that the father’s relationship with Ms M was punctuated by family violence. He accepted in the witness box that Police had been called to their home on no less than five (5) occasions in response to family violence complaints. These complaints involved either himself or Ms M - or both of them - suffering injuries. There were events involving damage to property. There were descriptions in the subpoenaed Police material of holes being punched in gyprock, doors being broken off and a computer and some glass smashed.
Ms M did not give evidence in the case, and it does appear from the material before me that she was at times the aggressor in relation to the father. But it is also clear that the father assaulted her. He was convicted of an offence of common assault against her on 24 November 2007 for which he was fined $500 and placed on a section 9 bond for 18 months.
The circumstances of the assault are before me in the exhibits. It is a little unclear exactly what happened, but it suffices to say that there was an altercation the day before between Ms M and the father. They had been out that night, presumably drinking. The Police notes record that the father had pushed Ms M to the ground, which the father admitted in the witness box. He had then punched her with a closed right fist, hitting her in the mouth, causing her mouth to begin bleeding. The father denied this particular allegation. Ms M ran away and attended her brother and sister‑in‑law’s premises, returning to the house a little later.
On 24 November 2007, Ms M accused the father of refusing to get her telephone out of the car so that she could ring her mother. She says that he called her “nothing but a stupid slut”. I should record here that the father said he did not remember calling her that. Ms M then went downstairs to get a glass of water from the kitchen. She grabbed the phone from the kitchen bench in an attempt to call her mother and the father then grabbed her and the phone and began biting her on her right forearm and hand with his teeth. A nearby neighbour heard Ms M screaming and attended their premises. The father left shortly after.
Police were called. Police observed that Ms M had a cut lip, red marks and bruising to her right forearm. They conducted interviews.
The versions of events were somewhat conflicting. In relation to the earlier altercation, the father told Police that Ms M had lashed out at him with her high heels, and that he had pushed her away (which he admitted in the witness box) to avoid being struck again by her high heels.
In relation to the earlier event, either the “push” or “punch” as the case may be, Police considered that there were conflicting versions and that Ms M may have been the aggressor by hitting the father with her shoes. In any event, he was however charged for the biting offence. Police charged the father with “common assault” to which he pleaded guilty and they took out an AVO to protect Ms M from him.
It suffices to say that the father’s relationship with Ms M is troubling and that very early on in the relationship between the parents, Ms M attempted to warn the mother of what the father was like.
I should also note that by the time the parents commenced a relationship in 2009, the father had already been charged with a “drive with low range PCA” offence in May of 2006, for which he was placed on a section 10 bond. It was the first of three (3) drink driving convictions the father has. The evidence will establish that up until at least 2020 the father had a significant history of alcohol abuse which persisted during all of the violent relationships to which I have referred.
The parents’ relationship:
Very early on in the relationship, the mother discovered that the father displayed an unhealthy need to control her movements and to generally check up on her. He told her that she was “his only” and he would persistently ask where she was. I accept her evidence that the father always seemed to be checking up on her and he discouraged her from socialising.
Over time the father dictated the mother’s appearance, in terms of telling her how to dress, what colour she should dye her hair and how she should wear her makeup. Though he denied this evidence, I accept it is true. There was one particular event where the mother shaved her head or cut her hair short for a cancer-type charity event, and the father was involved in giving some directions about that, but that is something of a distraction in the grand scheme of the case and, certainly, it does not explain the father’s behaviours in general.
The father began to belittle the mother, calling her “fat”, “useless”, “a fucking idiot”, telling her he “hated her” and that “no-one would ever want her”. The mother estimates that twice a month, and usually during heated arguments, the father would threaten that, “If you leave me, I will kill you and then myself”. He also said that he would kill her and her parents. This evidence is corroborated by the maternal grandfather who says that on an occasion in 2013 when the mother sought refuge in their home in 2013 with obvious physical injuries, the mother repeatedly said that she was “not safe” and that he and the maternal grandmother were “not safe”.
The mother was concerned about the father’s behaviour, but like many victims of family violence, she persisted in the relationship. She had feelings for the father and she tolerated behaviour that was unreasonable, violent and entirely inappropriate.
The violence became physical early on. The mother says that within weeks of the relationship, perhaps four (4) weeks, the father would grab and punch her arms with a closed fist until she bruised. She would learn to get away by running into a room and locking the door. I accept her evidence that he most commonly punched her upper arms. She wore a full-length uniform to work; at that time she was working in hospitality and training to be a hospitality worker and her uniform covered the bruises.
I accept that the father called a witness, Mr E, who worked with the mother and was her manager for a period of time and he did not observe any such injuries. But this does not mean that the mother’s allegations are not true, rather that Mr E did not himself witness such things.
The mother says that the father often grabbed her around the neck and/or pulled her by the hair and would repeatedly throw her head back and forth into a brick wall; that he would punch, hit or grab her weekly, and often more regularly than this; that he would be more violent towards her on his weekends off work when he was drinking more, and she said that sometimes the attacks followed an argument and at other times, the father simply started behaving violently in an unprovoked manner. I broadly accept all of these allegations.
In 2010 the father tied the mother’s wrists together around the base of the toilet so that he could go out and drink at the pub. He thought it was something of a joke perhaps, but the mother was stuck there until he got home. Though the mother could not recollect exactly what the father used to tie her up with, and although she had not made a complaint to Police and had no independent documents to prove what he had done, I accept the mother’s evidence. I also note that the father had hog-tied a previous relative of Ms M as referred to earlier. Although the father says that this earlier hog-tying event was only a joke, it is obvious that he had a capacity to tie people up and I accept the mother’s evidence.
This is not to say that everything the father did in his relationship with the mother was violent and abusive. Human relationships are not as simple as that. In particular, I accept that in 2009 the father had taken the mother to the City O Hospital, because she had taken 20 Advil tablets an hour earlier - washed down with two (2) glasses of wine. She said she wanted to commit suicide and that she had made several suicide attempts in the past.
She had a history of depression and PTSD in relation to hospitals. The mother’s mental state relates at least partly to her motor vehicle accident referred to previously.
It is also noteworthy however that in the relevant hospital records of this attendance (exhibit 7) that the mother had also been arguing with her boyfriend and that there was a “situational crisis”. The mother referred to having had relationship difficulties with the father in the last three (3) months, which was in my view a minimisation. The problems had been on foot for longer.
But it is fair to say that in relation to this event, the father made sure that the mother was looked after. The mother was somewhat critical that the father was quite physically directive in terms of getting her into a car after she took the tablets and essentially forcing her to go to the hospital. In my view, her criticisms of him in that respect were unreasonable.
In 2010, the father was arrested by Police for assaulting the mother. It was not the first assault, nor was it the last. The mother’s evidence is that she was cleaning the father’s house and that he had a big container of coins which she asked him to move. He did not do so. She thought that he had ignored her. She tried to lift the container herself and it fell to the ground. She said that the father assumed she had thrown the container on purpose and a verbal argument then broke out in the course of which the father grabbed her by the hair at the back of her head and pushed her into a brick wall, grazing her face until it bled. She said she ran from him and locked herself in the bathroom where she called a friend to come and pick her up. This person picked her up and took her to her brother’s place, who then rang the Police.
Police charged the father with common assault, as well as applying for an AVO to protect the mother. The father pleaded guilty. On 23 November 2010 he was placed on a section 9 bond for a period of twelve (12) months with a requirement that he strictly comply with any current AVO.
So this was his second assault conviction in respect of an intimate female partner.
Notably, the mother says that there was nothing out of the ordinary about this particular incident and that it was only reported to Police because she needed help to get out of the house and her brother encouraged her to report it. She estimates that that level and type of violence happened weekly in the relationship. I broadly accept the mother’s evidence in this respect.
On 23 November 2010, the Local Court made a final AVO protecting the mother. This contained the “standard” AVO conditions.
A few months later, the father was charged with mid-range drink driving and convicted and fined $1,000, as well as disqualified from driving for a period of twelve (12) months.
The father’s mental health was clearly compromised at that time. He consulted his doctor who noted on 22 March 2011 that he had a “pathological history of grieving relationship failures”. The recognition that he struggled with relationship breakdowns is perhaps partly an explanation for his jealous and controlling way of behaving towards the mother in this case, but it certainly is not an excuse.
I accept the mother’s evidence that the father was physically violent to her during the relationship.
For a period, the parties separated and the mother was in a relationship with someone else, a Mr P, however, the mother and the father reconciled and their relationship continued, although, as noted, they did not live together until the mother was quite heavily pregnant with X.
On the evening of 30 September 2012, the father was again involved in another violent incident while intoxicated and in the early hours of the morning. He was in the mother’s vehicle after she had finished work at about 11 pm. A group of Aboriginal youths crossed the road in front of them and, apparently, one of them threw a flavoured milk bottle at the mother’s car.
The father told the mother to stop and he and another male who was with them got out and chased after the juveniles in question.
I am satisfied from the evidence before me that the father caught up with the first victim, a female, and that he grabbed her by the shirt, pulled her to the ground, poured a stubbie of beer over her back (which he admits) and that he then kicked her repeatedly on the ground. The father denies the latter, but I accept that it is more likely than not to be true. He was certainly drunk and angry at the time. He also had a history of being violent towards women when angry.
The father then chased the other young person and caught up with her and punched her with a closed fist on the left side of the face. In the witness box, the father said he had only “slapped” this young person, but I do not accept that. Even if the father had only slapped this young person, I am comfortably satisfied that he would have slapped her with some significant force, given his state of agitation.
It appears that the father had grabbed another one of the young people in question and was holding them against the side wall of a service station, but that by this stage one of the juveniles had contacted some relatives or friends. A vehicle pulled up and, apparently, Mr Q, a well-known sportsman and a Mr R, an apparently well-known sportsman, then proceeded to become involved in a scuffle with the father and his friend. The father was punched a number of times to the head area (including the jaw) and had his jaw broken on that occasion which required surgery.
The mother does not say much about this event in her affidavit. She was very limited in what she told the Court about it; however, she did accept in the witness box that one of the juveniles in question had, in fact, hit her at some point while all of this was going on. In that sense, the father, perhaps in a perverse and overreacting way, was at least acting to try to perhaps protect the mother as well. That is perhaps as generous as I can be to the father on the evidence before me. It is clear that his behaviour was quite violent. He had also consumed, on his own evidence, about thirteen (13) stubbies of Super Dry beer throughout the day and a further two (2) schooners at the hotel before getting into the mother’s car. Tellingly, he described that level of alcohol consumption, which can only be called extreme, as being “occasionally normal” for him at that time.
The upshot is that the father was charged with two (2) counts of common assault in respect of this event. The charges were dealt with in the Suburb S Local Court, and he was ordered to undertake two hundred (200) hours community service, as well as being placed on three (3) years’ probation to be supervised by the New South Wales Probation Service.
It is quite apparent that the father had a difficulty with anger and with managing his behaviour. He was behaving in a violent manner on occasions and it seems to me that he was in rather serious need of mental health treatment. He did, in fact, undertake some counselling after this event. The father saw a psychologist, Mr T, where he talked about being frustrated and irritable and suffering from angry outbursts, a sense of isolation and generally being fairly unhappy and depressed in his life.
The father undertook cognitive behavioural therapy with Mr T to address his depression and anxiety. Anger management was one of the issues addressed, as anger was reported as one of the father’s main maladaptive behaviours. The father made some progress, but, unfortunately, he stopped seeing Mr T after some five (5) appointments. His therapy was left incomplete.
The assault of 16 January 2013:
Worse was to follow in the father’s relationship with the mother.
On the late evening of 16 January 2013, or perhaps the early hours of 17 January 2013, the father and the mother were out drinking together at a hotel. As often happened, they got into an argument.
I accept the mother’s evidence that the argument related to her catching up with some friends of hers from sports and the father’s jealously accusing her of being in a relationship with one or other of them, or potentially trying to get into a relationship with one or other of them.
They got back to the mother’s home where the father wanted to collect his keys, which had been left there. The mother became fearful. She tried to lock herself in the bedroom and the father broke down the door and strangled her around the neck until she passed out.
She regained consciousness later and saw the father outside in his car. She tried to give him his keys and convince him she had not been flirting with anyone. He then grabbed her on the back of the head and hit her head against the brick wall on the side of the house, causing her to pass out again.
The next thing the mother remembered, her neighbour Mr J was there holding a baseball bat and yelling at Mr Snyder to stay away.
The father gives two (2) different accounts of the same event in paragraphs 39 and 40 of his trial affidavit. Both paragraphs clearly relate to exactly the same event, but they are different versions. The father accepts that he had drunk fairly heavily. He says the mother refused to give her his keys back and he pushed her against the wall and he says she punched him and re-broke his jaw. He says, effectively, that he was the victim in that sense, because she did far more physical injury to him than he did to her.
He also says that, at a later point when he was sitting outside in his motor vehicle, the mother came out and hit his vehicle, denting it. He said he managed to get his key off her and she then punched him in the mouth and he felt his jaw re-break. This is, again, a repetition as between paragraphs 39 and 40, although his affidavit versions differ. He suggests that he pushed her away as she was about to hit him again and she hit the brick wall as a result and that they both ended up on the ground and Mr J then attended with a baseball bat. He says he drove home afterwards, clearly drink driving I might add. He says that once he got home the mother’s brother, Mr U, and her father arrived at his house and that Mr U punched him in the head three (3) times.
In any event, the next day he did go to hospital where he underwent further jaw surgery.
Effectively, the father says that he was in large part the victim of the mother’s violence on that occasion.
I do not accept the father’s evidence that he was the primary victim here. Mr J gave an affidavit. He was an impressive witness who in my view “told it like it was”. His evidence was that he was awoken during the night by yelling and screaming from the mother’s property, that he went to the front door, recognised the voices as belonging to the mother and the father, and that from the screen door he could see the mother lying on the grass of her front lawn with the father pinning her down. This was some twenty (20) metres away from where he was.
Mr J said the mother was screaming and the father was yelling at her. He then grabbed his stepson’s baseball bat and he says:
6.Upon my return, I observed that [Mr Snyder] had his hands around [Ms Argyle’s] neck and was strangling her. [Ms Argyle] appeared to be helpless and was not defending herself very well. Both [Mr Snyder] and [Ms Argyle] appeared to be very intoxicated. I say this because their reaction times appeared slow and unco-ordinated.
7.I approached [Mr Snyder] from behind and tapped him on the shoulder. We had a conversation to the following effect:
I said: “I am gunna give you five seconds cunt before I clout ya.”
[Mr Snyder] then let go of [Ms Argyle’s] neck.
I said: “What the fuck is going on?”
[Mr Snyder] said: “She won’t give me my car keys.”
8.By this stage, I observed other neighbours had exited their properties to see what was going on. I did not observe [Mr Snyder] to have any obvious injuries.
9.I then said to [Ms Argyle] words to the effect of: “Where’s his keys? Give the silly cunt his keys back so he can fuck off.” [Ms Argyle] then threw [Mr Snyder’s] keys to him and he left.
10.Shortly thereafter, [Ms Argyle’s] parents and brother arrived. I recall letting them know what had happened and then going back home, as I considered [Ms Argyle] was safe with them.
To recap, the father admits to pushing the mother against a brick wall. I do not accept that he did so in self-defence. I do not accept that he did so in response to the mother breaking his jaw. I do not accept that the mother physically punched the father at all.
I consider that the father confected the story of the mother punching him and that the far more likely scenario is that the mother’s brother, Mr U, caused the injury to the father’s jaw when he attended at the home later that night.
Mr U was not called as a witness in the case. The maternal grandfather denied that Mr U punched the father, but did say that Mr U threw him heavily to the ground three (3) times. I simply do not accept that the mother broke the father’s jaw. I do not accept that she hit the father.
I accept her version of events, subject to the caveat that the exact order in which events occurred may not be entirely clear, given her own state of intoxication. But on any view the father was absolutely the primary aggressor.
The father’s evidence that he did “not remember” choking the mother or having his hands around her throat was entirely unreliable and I do not accept that evidence at all.
Mr J said that the father had his knees on either side of the mother’s torso and was pinning her down. Mr J was in no doubt about what was happening. He was however challenged about potentially letting the father continue to hold the mother in that position for five (5) more seconds “before I clout ya”. In that respect, Mr Mueller suggested to Mr J that if he thought the mother was about to immediately die from being choked, then he would not have given the father five (5) seconds to respond. I agree with that, but it does not change the fact that the father had his hands around the mother’s neck and that this was a very serious act of family violence.
It was not the first time he has had his hand around the mother’s neck, but it was one time when such actions were in fact witnessed by someone else.
The father behaved as a bully on this occasion and his violence was at an extremely high level. I accept the ICL’s submission that, in a family violence context, choking events of this nature can be indicators of potential lethality. I am also mindful of the fact that the mother attended upon her GP on Friday 18 January 2013 and that the GP’s notes record as follows:
Alleged assault by boyfriend 16.1.13 at home. Both under influence alcohol. No Police. First assessment. Says was being strangled and blacked out. Head was pushed against brick wall with LOC [loss of consciousness]. Has been dizzy since, tending to fall to right. Has sore throat, grazes left knee x 2 and back of head tender ++, bruise over scalp. No visible bruising on throat. Internal throat NAD [no abnormality detected]. Dramatic tenderness of anterior throat muscles and trachea has painful restriction of cervical spine movements all directions.
(my emphasis)
In summary, the father pushed the mother’s head into a brick wall, he choked her with such force as to cause significant pain. This is a very serious event of family violence in my view.
As to Mr Mueller’s argument that the mother had not called Police to make a complaint about this event, I accept that she did not. It is fair, however, to say that the mother’s brother and father had clearly been involved in some sort of altercation with the father later on at his home and I can, with respect, understand why the mother’s brother would not necessarily be keen to step forward as a witness in the case, given that he seems, on all of the evidence, to have physically assaulted the father.
In any event, the mother continued in her relationship with the father after this event.
Sexual coercion:
The mother complains that the father was sexually violent towards her during the relationship, and this was an aspect of the evidence that the mother, in my observation, found extremely confronting when she was giving evidence about it.
Her evidence is that on a number of occasions the father forced her to have sex with various acquaintances. She gives one example of where the father brought a neighbour and his partner over and they were all drinking together and that the neighbours after a while initiated sex with each other and the father attempted to initiate sex with her. The mother said she was not comfortable, but the father persisted and they went on to have sex together. The mother gave evidence that she was on top of the father. She was visibly and obviously distressed when recounting this evidence, and I am satisfied that she was re-living trauma.
Afterwards it was suggested that they swap partners but the mother declined. Her evidence is that she refused, got dressed and left and that the father later assaulted her. He grabbed her by the shoulders and shook her.
The mother says that the father made arrangements for these sexual encounters, that she was never asked in advance and if she refused, she would be assaulted.
Mr Mueller on behalf of the father submitted to me that I should be very careful about making findings of, effectively, what would amount to a rape. There is some merit in this. The evidence on point is not particularly detailed.
What I am satisfied of, however, without any real doubt, and certainly on the balance of probabilities to the highest standard (Evidence Act s 140(2)), is that the father behaved in coercive, controlling ways throughout the relationship and that sexual contact between them was but one aspect of such coercive and controlling behaviour. I do not suggest that the mother was “raped” in a strict legal sense – but rather her consent, to the extent it was consensual, was given under great duress and in circumstances where there was an enormous power imbalance and where she was assaulted on occasions when she did not participate.
In any event, the parents’ relationship continued after this and, as I have indicated, the father sought some counselling for anger management, etcetera, but he did not complete it.
I accept the mother’s evidence that the frequency of the father’s physical violence upon her over the years was so prolific that she lost sense of what normal behaviour was in a healthy relationship. On a number of occasions the parents appear to have separated, albeit for short periods, and the father made promises to the mother that he would change. He accepted in the witness box that he made such promises to her to change.
Mother falls pregnant & parents move in together:
When the mother fell pregnant with X in late 2015, she was in a way excited. She had been diagnosed with endometriosis very early in her life and, in that sense, X was something of a medical miracle from her perspective.
The parents moved in together, but their relationship continued to be a violent and toxic one. I accept the mother’s evidence that the father was physically violent towards her during the pregnancy, including on one occasion when she asked him to paint X’s room and when she asked him to remove items from X’s room and come to a pre-natal appointment.
I accept the mother’s evidence that the family violence was “up and down” at that time.
One particular night, when the mother was five (5) or six (6) months pregnant, the father became angry and was screaming and throwing items at her. He hit, punched and grabbed at her around the neck, face and arms as he usually did - but on this occasion he also hit her in the stomach.
The mother did not have any bruise nor did she experience concerning symptoms, so she did not disclose this event. However, she recalls that X was “moving” in her belly a considerable amount and she knew that something was not right. The mother felt helpless, scared, and that she had no-one to turn to. She fled the house and sought refuge in a car park, sitting in her car. I accept the mother’s evidence that X moved around in an unusual manner, and consider that the mother was terrified. She was, in a sense, entirely isolated.
X’s early days:
Fortunately, X was born seemingly without any injuries or having suffered any harm from the above assault.
The labour itself was somewhat traumatic. The father took the mother’s yoga ball when the midwife was not present, because he wanted to use it himself for his own comfort. He sarcastically asked the mother “how much attention she thought she needed”.
The mother was in the shower at one point, and the father was annoyed when his Ugg boots became wet when he was trying to assist her. It was suggested at the trial that the Ugg boots reference was just the father “joking around”. I do not accept that for one moment.
Some thirty (30) minutes after X was born, after having been stitched internally, the mother bled onto the floor. The father’s response was to point to the blood and tell her she was “disgusting”. The mother ended up bending over with a towel to clean up the blood herself before a midwife came and took the towel off her.
The father’s involvement in baby X’s life was limited at best. The mother did practically all of the parenting. The relationship remained a violent and toxic one.
The parties finally separated in 2016 when X was two (2) months old.
The mother got into an argument with the father and ran into the bedroom to hide. It is unclear whether she was in a bedroom or whether she was in the toilet. It was suggested to her that she may have been in the toilet, and it is a little unclear to me. In any event, she says that the father grabbed X from her and held X so that she was dangling by one arm. X was distraught and crying and screaming loudly. The mother says he held her in this way for what felt like hours, but was probably only five (5) minutes or less. I accept the mother’s evidence about this.
The maternal grandmother was telephoned to come and assist on this occasion. I do note that the maternal grandmother was not called as a witness, but I nonetheless accept the mother’s evidence.
I also accept the mother’s evidence that the father told her that if she called the Police about this event that, “They’ll take X off you forever. You’re such a bad mother, you can’t take care of her.” I also accept her evidence that she physically was assaulted by the father the next day.
I accept the mother’s evidence that the father continued to push aggressively to have sex with the mother, including not long after X’s birth and that on one occasion she was left bleeding heavily afterwards. I accept her evidence that the father effectively wanted to have his sexual needs met regardless of whether or not the mother was interested and regardless of her state of health.
Final separation occurred in 2016.
In 2016 the mother had been awake during the night feeding X. On the next day, X was crying and the father wanted her to be quiet, because he had to work and it seems that he was irritated about the child crying. The mother wished the father “happy birthday”.
The father arrived home at approximately 8 pm that night, having drunk heavily. The mother had made him a birthday dinner, which he threw across the room. While the mother was breastfeeding X, the father came up to her and started hitting her around the face with closed fists. The father denies it, but I accept the mother’s evidence. The mother tried to shield X from him and she was successful. Eventually, she broke away, she locked herself in the bedroom and this is when she left the relationship for good and moved out.
The mother was cross‑examined about this event in particular, and I found her evidence compelling. When asked why she ended the relationship, she said that if the father could hit her while she was breastfeeding X, then she asked rhetorically “How far could it escalate from there? It was just too close to harming X.”
Post-separation:
The mother moved in with her parents. They were pleased to have her because they were concerned about her, she having disclosed violence to them over the course of the relationship. The mother went to see a GP, who referred her to a psychologist Ms V who she later saw and who has been treating her.
As I said earlier, the father was having some supervised time with X after the parents separated. In my view, on the evidence before me there was no proper reason for the mother to facilitate any time between the father and X. He cannot be heard to complain about the limited time she did allow him to spend with her.
It is troubling that when the mother was facilitating the father having supervised time that he still behaved in abusive ways towards her. For example, he would often spend time going through her house looking for evidence of another man being there or being focused on his phone. When the mother would encourage him to play with X, or ask her to try to talk or use body language to express herself, he was reluctant, saying, “What’s the point? She doesn’t fucking talk anyway.”
On some occasions the father attended under the influence of alcohol and the mother told him to leave.
On one occasion, the father went through the mother’s bedside tables looking for evidence of her having a partner.
The father started doing some FIFO work in in late 2016 / early 2017. The mother facilitated some FaceTime and as well as some supervised visits. These moved away from the mother’s home and started happening at more family-friendly or child-friendly places, such as beaches, parks and pools. The father accepted in the witness box that not once did he bring toys, water, food or nappies with him.
In 2017, the parents entered into the Parenting Plan to which I have referred.
In 2018 the father started spending time with X while doing his grocery shopping. He was effectively trying to “kill two birds with one stone” in a time sense. There was an element of convenience for him in this, but again it shows a lack of child focus. It is true that X enjoyed sitting in the shopping trolley, but it was a fairly limited effort on the father’s part.
I accept the mother’s evidence that the father was also quite intimidating on some of these shop visits, whispering to her things such as, “Fucking smile, cunt. You’re causing a scene. People are looking at how you fucking look. Stop making a fuss. Play happy families. This is what you wanted, remember?” He effectively taunted the mother.
Indeed, the maternal grandfather started to attend these “shop” visits to keep an eye on things and on one occasion he intervened when he saw that the father appeared to be “twitchy” and was perhaps on drugs, although I cannot make a positive finding about that. He said to the father “Today is not your day”, and thus ended the visit.
By late 2018 the mother took the advice of her psychologist, Ms V, and the visits occurred at a McDonald’s restaurant from then on.
I should also add here that apart and quite separate from the visits, the mother gives evidence of the father stalking and otherwise attempting to intimidate or harass her. I accept her evidence that she saw the father’s car parked at the Suburb W Train Station. She saw the father at University where she was studying. When she spotted him in public, he would give her a “death stare” and try to stand in a tall manner to make himself look as big as possible.
In August 2018, she heard a loud car outside her house, followed by loud crashing noises. The next day she inspected the gutter and the lawns and found several marbles. She believes that the father was the one who had attended, because he drove a Motor Vehicle Y, which had a modified exhaust and made quite a distinctive sound. The father denied that it was him. I am satisfied on balance and on all of the evidence that it was.
But even if I was wrong about that, certainly the mother would be reasonable in concluding that it was.
At McDonald’s visits, the father would continue to interrogate the mother about her movements, who she was seeing etcetera.
On 18 March 2018, X seems to have hurt her arm on the McDonalds playground equipment while she was with the father. She later complained to the mother that the father had yelled at her and hurt her arm. The mother believed what X said. The father denied that any such event occurred. I do not make any positive finding that the father abused or assaulted X on this occasion.
On occasions the father still attended visits under the influence of alcohol, or seemingly under the influence of alcohol.
In September 2018 the father was again apprehended for drink driving – this time at City Z. He was charged with driving with a low range PCA. Interestingly, his criminal history reads as though it was his first such offence when clearly it was not. He was fined and disqualified from driving for three (3) months.
Father’s relationship with Ms D:
By late 2017, the father had formed a relationship with Ms D, whose affidavit is before me as exhibit 4.
That relationship persisted through 2018 and into 2019. They separated by the end of 2019. During their relationship, they were separated for a brief period in which time Ms D fell pregnant with her child, K, who was born in 2019. The father was aware that he was not K’s father, but was happy to reconcile with Ms D and to act as a father figure for K. I should add that Ms D also had four (4) other children.
Ms D gives evidence of the father perpetrating much the same types of violence and alcohol abuse as the mother herself witnessed. She observed him to drink excessively most days, up to ten (10) to twelve (12) beers in one sitting. I accept her evidence that on one occasion she challenged him about drinking and he denied drinking - before proceeding to vomit and pass out.
Ms D’s evidence is that the father became argumentative and violent when he was drunk, which is exactly the same evidence that the mother gives, and I accept it.
In January 2019, the father and Ms D had an unpleasant argument and the father effectively evicted her. By this stage they were engaged and the father told her to, “Get the fuck out. Give me back my ring.” All of her children were within earshot and eyesight.
On this occasion Ms D says the father threw a scooter out of the house and in the direction of her son, AB. AB was her second youngest child born in 2015. She thought that he had thrown the scooter at AB on purpose. The father denied doing so and said that the scooter had been placed in a dangerous spot in the hallway.
I do not consider that he threw the scooter intending to hit AB, but I am satisfied that in his rage he was content to throw it in AB’s direction. At that stage, Ms D was heavily pregnant and about to give birth to K in a few weeks’ time.
He also threatened suicide on this occasion, as he accepted in the witness box. He sent a number of messages to Ms D saying he was “done with everything”, it was “no joke”, that “she did not have to worry about him anymore”, that he had “failed in this life”, that he was “done” and that it was “the end” and he had “failed everyone, was not a good person and that was it”.
He persistently resisted her requests to go and get some proper mental health assistance. Interestingly, in the same message trail the father also said to Ms D, “You have no idea what I fight every day.” Asked about this text, the father tried to pass it off as relating to X - but I am satisfied that his text was a reference to much deeper problems in the father’s psyche than just his relationship with X. I think, and am satisfied, that the father was understating what was really going on in his mind and what his inner demons were at the time of that text.
The father was in fact taken to hospital after this event. The hospital records where he was admitted for three (3) days are before me. It is clear that he was diagnosed as suffering an alcohol-related mood disorder and situational crisis with suicidal ideation in the context of alcohol intoxication. He had active plans of self-harm and had attempted to gas himself in the car three (3) days ago, had changed his mind and then decided to commit suicide again by a drug overdose or by taking sleeping pills. He had a history of depression, which I should note dates back to 2007 on the evidence before me. The hospital notes record that he was drinking four (4) to six (6) mid-strength stubbies a day and binge drinking twelve (12) to eighteen (18) drinks on the weekend; he admitted he had been drinking most days since turning eighteen (18).
The father had given different accounts of his alcohol use to different doctors at different times, but I am satisfied that this evidence from the hospital was provided when the father was at his most raw and honest. As noted, he was assessed as suffering alcohol use disorder and alcohol-related mood disorder and situational crisis with suicidal ideation in the context of alcohol intoxication as the primary presenting complaint.
He was ultimately discharged in the care of his partner, Ms D, and their relationship continued, as I say, for most of that year.
Ms D gives evidence that, notwithstanding that their relationship continued, the father still threatened to kill himself a number of times. I accept her evidence about that. As observed earlier, the father had threatened suicide on many occasions during the relationship with the mother, as well as threatening to kill her.
Ms D gives evidence that the father was constantly messaging her and trying to find out where she was. This is consistent with what he did with the mother and I accept her evidence.
I accept Ms D’s evidence that the father would swear and humiliate her in private and in public with people watching. He did the same to the mother in the shopping centres during visits with X. The father would attack Ms D’s intelligence and parenting capacity and make her feel down about herself by calling her such things as a “useless cunt” and “a stupid bitch.” I accept Ms D’s evidence about that, and that she would often scream and shout at the father.
Interestingly and importantly I accept Ms D’s evidence that:
61. [Mr Snyder] would also tell me the violent acts he wanted to do to [Ms Argyle] [sic: should be [Argyle]], the mother of his daughter [X]. He would say to me words to the effect, “I just want to punch her in the face”, and “I can’t stand that bitch. All I want to do is punch her in the throat”.
The father admits that he said these things to Ms D, but suggests that they were private statements, that they were not serious and that they were in the context of the mother being difficult about the father’s time with X. I reject his statements and minimisations. I am satisfied that the father vented on numerous occasions to Ms D about the mother and that his statements very much reflected his honest and genuine belief about what he wanted to do to her. In one way, they were a “window” into his true thoughts and, in that sense, it is useful evidence that would not otherwise have been made available to the Court but for Ms D coming forward.
Notably, Ms D had to drive the father around while he was disqualified from driving, which was obviously an imposition on her.
There seems to have been a “holding over” event in November 2019 where the father took K off Ms D for a brief period at a public pool. Police were called and were not sure who was the aggressor and who was responsible for the situation. They cast potential aspersions on Ms D, noting the family law context (between Ms D and the father). This is unfortunate, because in my view Ms D had indeed been the victim of significant family violence from the father.
The father commenced family law proceedings against Ms D seeking time with K, which he ultimately abandoned.
I have already addressed the history of these proceedings, and I will not repeat myself. It suffices to say that Ms D did come forward to the mother in November 2019 telling her about her concerns about the father. The mother at that time was not sure what to do or whether to make contact with Ms D.
I do not suggest that Ms D was being entirely altruistic in approaching the mother. It was clear enough that her relationship with the father ended in fairly sour circumstances, but having said that, I do accept that Ms D was being genuine in reaching out to the mother to express her concerns about the safety of X and about the father’s generally aggressive and unreasonable behaviours.
I have addressed already the history of the father’s time with X during the course of these proceedings and I will not repeat myself. The short summary is that he has not had time with X.
THE LAW:
I turn then to the law.
These proceedings, being parenting proceedings, are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). When making a parenting order for X, the Court is obliged to treat her best interests as the paramount consideration: s 60CA of the Act. The relevant mandatory considerations in arriving at a best interest determination are prescribed in s 60CC(2), as explained in s 60CC(2A) and in s 60CC(3). I do not propose to repeat those subsections in detail here. It suffices to say that I am well familiar with the provisions and have considered them for the purposes of these reasons.
If the court makes an order for parents to have equal shared parental responsibility, there is a particular statutory pathway provided for in s 65DAA. In this case, neither party seeks an order for equal shared parental responsibility and so that pathway is not specifically relevant. The question of what parenting arrangements should be ordered is very much “at large.”
As injunctions are sought in these proceedings, I should also observe that s 68B of the Act empowers the Court to make orders for the personal protection of a party or of a child where such injunctions are appropriate.
BEST INTERESTS:
I turn then to some best interests findings, as I am required to do.
From everything that has come before, it will be obvious that this case, to a very large extent, turns upon s 60CC(2)(b). The Court needs to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am comfortably satisfied that the father has been a long-standing perpetrator of family violence against the mother, which occurred in X’s presence and which placed X at risk of harm in 2016, as well as potentially placing X at risk of harm when he assaulted the mother while she was pregnant with X earlier in 2016.
The father has only partial and limited insight into his own behaviour; he has limited remorse. I consider him to be largely in denial of his own actions. Although he has undertaken a Parenting After Separation course, he has not undertaken a family violence perpetrators course, and he consistently minimised and deflected his family violence.
His history of family violence is long and rather harrowing. It includes violence during his relationship with Ms M, violence during his relationship with the mother and violence during his relationship with Ms D. Ms D expressed fear of the father. The mother has picked up on that fear and also exhibits such fear herself.
Family violence is a very serious consideration in this case. It poses multi-faceted risks to this child, as Dr L, the Family Report writer, observed in her Family Report. Dr L noted that the father essentially denied the mother’s allegations and that he, in fact, suggested that she had made up many lies and that he believed it highly likely that she planned the pregnancy, merely using him as a sperm donor. He said that the mother’s fear of him and allegations about him are false, that 90 per cent of her affidavit was untrue.
He could not, of course, explain why the mother had such a sore neck and throat region after the assault of January 2013, beyond saying to the Family Report writer that he did not strangle the mother. Of course, he could offer no other explanation.
It is noteworthy that the father was quite adamant that he did not strangle the mother when speaking to Dr L, and yet he prevaricated and said he did “not remember” whether he did when cross-examined in Court. In my view, the father was dissembling and avoiding responsibility.
Dr L recounted a significant body of objective evidence in the Family Report, including from subpoenaed material, which demonstrated - or at least pointed to - the father being the aggressor or behaving inappropriately or perpetrating family violence. But it is clear, and I accept Dr L’s evidence:
That he has not taken any responsibility, that he has very little insight into the impact of his behaviours on others and he has very limited, if any, empathy for the experiences of the mother, the impact on her parenting capacity and the risk of harm to the child.
At paragraphs 128 – 130 of the Family Report, Dr L said:
128.If the Court found that the mother’s allegations of family violence during her relationship with the father are true, then it is not too difficult to accept that her descriptions of the stalking behaviour post their separation are also true, despite there being limited objective evidence. If the Court finds that the mother’s version of events is accurate, then the family consultant is highly concerned for the risk to the mother and child once the father has read this report.
129.However, it is noted that making a final determination on whether family violence has occurred or not or whether the child is at risk of unacceptable harm in the father’s care is not the role of this assessment. It, therefore, remains that the Court will need to explore these issues further.
130.If the Court finds that the mother’s allegations as she presents them are true, then it is recommended the child does not have any time with the father, that the mother is awarded sole parental responsibility and that the mother is permitted to change the child’s name.
Family violence is far and away the major risk to X in this case, coupled with the father’s lack of insight, lack of remorse, minimisation and denial. That risk remains unmitigated in my view. The father has a longstanding difficulty with anger management. I accept he has undergone some subsequent counselling, but in my view the risk that the father poses remains at an unacceptable level in terms of family violence. He would be a direct physical threat to X if he were to spend time with her outside of a supervised environment.
Also, the long-term impacts of the father acting as a parent to X in terms of role modelling and the like are such that he poses an unacceptable risk in that regard. The worst thing X could learn from her father would be that it is okay to be violent to a female partner and to use violence as a means of problem-solving. The risks to X are, with respect, very difficult to measure, if not incalculable.
Moreover, the risk of X being with the father in circumstances where he enters into yet another violent altercation is very great and in my view unacceptable.
The father in this case has perpetrated longstanding family violence which causes this Court enormous concern.
In terms of alcohol abuse, the father returned a very high hair strand test reading for alcohol abuse in October 2019, a moderate reading in February 2020, a negative reading in July 2020 and in the subsequent two tests, namely, the test performed in September 2021 and April 2022. Both of those later tests were delayed by a couple of months. The father may have had some financial issues, but the delay is a concern. In any event, I do not have current evidence of the father abusing alcohol, but he has a very long history of doing so.
I turn briefly to the father’s laser treatment for alcohol abuse. He has undergone laser treatment through AC Laser which he underwent in January 2020 and it seems that this has worked something of a miracle for him. The father ought be given credit that there is no evidence of him abusing alcohol since early 2020. The laser treatment may have worked. He does however have a very long history of alcohol abuse. That said, there is no evidence of him ever undertaking drug and alcohol counselling and so there must be always be a caveat there in terms of a risk of potential relapse.
To be fair to the father, then, his history tells against him in terms of alcohol abuse, but in more recent times he does seem to have made significant improvement. Nonetheless, alcohol remains a concern. On its own it would not give rise to an unacceptable risk in the father spending time with X at this stage, but it is definitely a matter that would be limiting of any time that he did spend. The far greater concern is family violence.
The father has used illicit drugs for many years. He admits that he used speed. He and the mother both used party drugs at different times during the relationship. The mother says that the father forced her to take drugs, telling her that it made her a more fun person and, effectively, not giving her much of a choice. To some extent, the mother downplayed her use of illicit drugs, but I accept that the father was the primary driver in terms of illicit drugs and I accept that he did pressure the mother to take drugs.
Given that there are no adverse drug test results before the Court, I do not see either parent’s use of illicit drugs as a significant matter, and more relevantly at this time the father’s drug use. To the extent the father produced a positive codeine test in April 2022, this is explained by reference to medication he was prescribed for a tooth infection.
In summary, I consider that the father spending time with X poses multi-faceted significant risks of harm on account of the father’s longstanding perpetration of family violence. He poses an unacceptable risk to this child which cannot reasonably be ameliorated in my view. The child does not really know him much anymore. She has not seen him in three and a half years.
The mother’s experience of violence at the father’s hands is also a very significant matter. I am satisfied that she is very fearful of the father. She presented as fearful in the Family Report interview and her fear is reasonable, appropriate and justified.
I accept her evidence in her trial affidavit that the effect of the proceedings was devastating to her, that when she received the father’s Court material she could not contain her emotions and, initially, she fell into a foetal position rocking back and forth, feeling as if a protective bubble that she had built around X was crashing down. She said that filing affidavits, disclosing the extent of the emotional, sexual and physical abuse inflicted upon her is extremely distressing and that many of the details in her affidavit had never been disclosed by her before.
She refers to her PTSD being triggered. It is interesting that I do not specifically have before me any direct medical evidence which states that the mother has PTSD as a result of the father’s violence. It seems from the medical notes of the mother’s hospital admission in 2009 that she may have had PTSD relating to the motor vehicle accident.
I accept the evidence is a little unclear about this, but that is not fatal to the mother’s submission: that if I were to make an order for the father to spend time with X as he proposes, then her parenting would be discernibly adversely impacted by the making of such an order.
I have seen the mother’s distress with my own eyes in the witness box and I accept her genuineness. I accept her evidence that she remains petrified that the father may be involved in their lives, even in a supervised capacity. I accept her evidence that she is hyper-vigilant, obsessively checks that doors and windows are locked, that she lives in fear. I accept her evidence that when she goes out in public, she checks so she knows where the exits are. She has her father present where possible to ensure her safety. She does not sleep apart from X.
In Keane & Keane [2021] FamCAFC 1, the Full Court of the Family Court of Australia (Alstergren CJ, McClelland DCJ & Benjamin J) had to consider issues of unacceptable risk, as well as issues concerning the impact on the primary parent of the Court making an order for the child to spend time with the other allegedly risk-posing parent. There the Full Court said:
72.In the context of that statutory framework, which was recognised by the primary judge (at [82–93]), his Honour discussed “the Re Andrew principle” and its application in various authorities. Having considered those authorities, his Honour correctly, in our view, concluded that the task before him was:
[93]…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199. [1]
73.The primary judge’s reference to the need for “very cogent evidence” should be read as meaning no more than the fact that a parent asserting that a child should spend no time with the child’s other parent should be in a position to prove, by adducing evidence of sufficient weight, the basis of their contention to the reasonable satisfaction of the Court. In that context, for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw (1938) 60 CLR 336 (per Dixon J); Helton v Allen (1940) 63 CLR 691 at 712 (per McTiernan J); Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] (per McDougall J).
In the present case, the ICL contended that there was an unacceptable risk that the mother’s parenting capacity would be discernibly impaired by the making of an order for the father to spend time with X. This was the second so-called unacceptable risk raised by the ICL - the first unacceptable risk being the risk of family violence.
It is a little unclear to me whether Keane & Keane (supra) is endorsing a principle in relation to unacceptable risk insofar as a parent’s fear is concerned. At paragraph 80 the Full Court said, after referring to some authorities, that:
Subsequent authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent’s care, the Court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in section 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of “veto” over whether the child should have time with the other parent.
(my emphasis)
In my view, the unacceptable risk test is more relevant to a physical risk of harm to a child in the form of sexual violence or physical abuse or family violence, etcetera. It is an important test to apply in circumstances where the Court is unable or cannot make a finding about particular conduct by a parent, but where the Court nonetheless considers that an unacceptable risk remains.
I am not entirely sure that in Keane &Keane the Full Court were intending to extend the reach of “unacceptable risk” so that it relates or extends, rather, to an unacceptable risk of a parent’s parenting capacity being discernibly impaired. It is a little unclear on my reading of the decision whether that was what was intended.
It seems to me that the better reading of the decision is that, firstly, the Court must consider whether there is an unacceptable risk of harm and whether that risk can be sufficiently managed or ameliorated by supervision orders or the like. Secondly, as the Full Court said (amongst other things) at paragraph 82:
If the Court does not find that a parent represents an unacceptable risk of harm, it may nonetheless take into account anxiety on the part of the other parent arising from a genuine, but not necessarily rational, belief that a parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, the genuineness of the belief would clearly be open to doubt. However, where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time with or communicate with the parent.
Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence might also justify an order prohibiting the other parent from spending time or communicating with the child.
(This is an extract from paragraph 82 of the Full Court’s decision which also referred to Blinko & Blinko [2015] FamCAFC 146, Russell v Close (1993) FamCA 62 and Sedgley & Sedgley (1995) FLC 92-623.)
In any event, I am satisfied in this case that there is an unacceptable risk to the child arising out of the father’s perpetration of family violence which cannot be ameliorated to such an extent as to permit the making of an order for time.
I am also satisfied, though this is a secondary question, that if I were to make an order for the father to spend time with X that it would discernibly impact the mother’s parenting capacity in a very negative way, so as to significantly outweigh the benefit to X in being able to otherwise have a relationship with her father.
I accept that the mother has been able to parent X since separation and that she was able to promote the father spending time with X, but it was a circumstance where she was recovering from a violent relationship and she has since had the time to access better counselling support, to reflect on her past history and, in my view, the break in time that the mother has had from the father has only galvanised the degree of impairment and distress that the mother would suffer in the event that the father-daughter relationship were to resume.
The mother has done a lot of healing in the last few years. She has completed University. She has done very well for herself in what have been very difficult circumstances.
Dr L was concerned that the child was at risk of the mother’s parenting capacity being compromised by the making of an order for time and she was obviously concerned about the impact on the mother that any such order would have. She found in the Family Report, and I accept, that the mother would find any time arrangement extremely difficult to manage and that her parenting capacity could diminish significantly. She was also at greater risk of decompensating.
The mother did admit in the witness box that she would comply with any order made for time. She was plainly upset when answering a question about it, but she asked, “How could I not comply?” It was a statement of quiet desperation and it reflected her respect for the law, rather than any genuine capacity on her part to cope with all of this.
It cannot be forgotten that the mother has been a long-term victim of very high level family violence at the father’s hands for years.
It having been established to my comfortable satisfaction that it is simply not possible for me to make an order, nor would it be in the best interests of X for me to make an order, for the father to spend time with her, there is little more I need to say with reference to the other section 60CC considerations.
I should say, however, that I do not at this point see any real benefit to X having a meaningful relationship with the father, given his perpetration of family violence and the ongoing risk he poses. The only advantage to him having any form of relationship with the child is that it might avoid X having future self-esteem or identity issues which might arise from not having a father figure – but such issues are much less significant and much less concerning to the Court than the risks posed by the father and the impact on the mother’s parenting if I were to make an order for time.
There is no net benefit, in short, to there being a relationship between father and daughter.
The child is too young to express a view.
The mother has always been her primary carer. The father is someone who the mother has had to explain to X in terms of his previous role. She says that she tells X that he wasn’t nice to the mother, and that it is too traumatic to give details to X about what he did. When talking about him to X, the mother refers to the father as Mr Snyder, which I consider is appropriate, having regard to the nature of the relationship that the mother and father have had and also the relationship between father and child.
The mother has made all of the decisions about X. The father’s involvement has been limited.
The father has paid child support. There is no question that he has properly fulfilled his obligations in that respect.
I do not propose to make any order which changes the child’s circumstances.
There are no practical difficulties and expense issues that arise.
The father does not have the proper capacity to parent this child. Nor does he have an attitude to parenting which could be regarded as positive, having regard to his family violence history.
The child is young and doing well. The mother has done an excellent job raising her in difficult circumstances. She is attending kindergarten. She has a few health issues in that she required grommets for her ears, she is seeing a speech pathologist and a behavioural eye specialist and a podiatrist. She does, however, seem to be performing very well at kindergarten. The reports speak glowingly about her and in my view she is adjusting quite well and has adjusted quite well to the father’s absence. The mother provides her with everything that she needs in terms of her day-to-day needs and, no doubt, all of her love and support.
I have addressed issues of family violence at length and I will not repeat myself.
I want to make orders that are least likely to lead to the institution of further proceedings.
CONCLUSION & ORDERS:
I turn then to the orders that I propose to make.
Section 61DA(2) of the Act is engaged. Sole parental responsibility is a straightforward decision as being in X’s best interests. Section 65DAA does not therefore apply.
Having regard to the findings I have made, the father should spend no time with the child, nor should he communicate with her.
On the question of the child’s name, I see a benefit to the child in having her name changed to Argyle as per the mother’s proposal. The mother uses the name Argyle. Her family name is Argyle. X does not and will not have a relationship with the father on the orders I propose. There is no value to this child in maintaining a Snyder surname where X does not have the father involved in her life and in my overall view the benefits to the child in being able to change her name and to live a more seamless existence with her mother as a Argyle outweighs the benefit of retaining her existing name.
X is still young. It may be that down the track if the mother decides to remarry and change her name that she may want to change X’s name at that time. I see no difficulty with the mother changing it to her married name if that is what she does.
In my view, the order for sole parental responsibility to the mother should by and of itself give her the power to change X’s surname in my view. Section 4 of the Act defines a “major long-term issue” as including the child’s name, so I am not entirely sure why the Court needs to make specific orders about a change of name where a sole parental responsibility order is made.
In any event, I am satisfied that allowing a change of name in the orders I propose to make would be in the child’s best interests.
In terms of injunctions, I propose to make section 68B injunctions that I consider appropriate for the welfare of the child insofar as they relate to X and which go no further than necessary to protect her, as well as to protect the mother. There is no need for the Court to be concerned in any serious way about the impact of the injunctions on the father because the injunctions I propose to make do not in any real way limit his freedom of movement beyond what would be reasonably necessary for the protection of the mother and the child. There is no reason for instance for the father to be attending the child’s school or the child’s day care or the child’s extracurricular activities. It will only cause tension and difficulty if he does so.
In terms of passports and overseas travel, I propose to grant the mother the power to obtain a passport for the child without the father signing any documents and to allow her to travel outside the Commonwealth with X as proposed by the mother and by the ICL.
For these reasons, I propose to make the orders set out at the commencement herein.
The last issue, then, is costs. The ICL does not seek any specific order for costs. The mother seeks costs from the father, which application will be listed next week and to that end I will have these reasons taken out in written form and provided to the parties as soon as possible.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 5 December 2022
[1] Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993); Re Andrew (1996) FLC 92-692.
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