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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Snyder & Argyle

Details

AGLC: Snyder & Argyle [2022] FedCFamC2F 1700
Case: [2022] FedCFamC2F 1700
Decision Date

CaseChat Overview and Summary

Snyder and Argyle involved parenting proceedings concerning a six-year-old child, X. The father, Mr Snyder, had been involved in a violent relationship with the mother, Ms Argyle, and had a history of alcohol abuse and family violence. The mother sought a "no time and no communication" order for the father, while the father sought unsupervised time with X. The Independent Children’s Lawyer supported the mother’s position. The court considered the risks posed by the father and whether the mother’s parenting capacity would be significantly impaired if an order for time was made. The court found that the father had perpetrated longstanding family violence, which posed an unacceptable risk to the child, and that the mother's parenting capacity would be significantly impaired if the father spent time with the child. The court made orders for the father to have no time or communication with X, for the mother to have sole parental responsibility, and for the mother to be permitted to change X's surname to Argyle. The court also made restraining orders to protect the mother and child from the father. The court considered that the orders were least likely to lead to further proceedings and that they were in the best interests of the child.

Orders