LYLE & LYLE

[2015] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYLE & LYLE [2015] FCCA 3147

Catchwords:
FAMILY LAW – Interim parenting orders – change of venue – whether to vary existing orders.

Legislation:

Family Law Act 1975, s.60CC

Federal Circuit Court Rules, rr.8.01, 16.05(2)(e)

Applicant: MR LYLE

Respondent: MS LYLE

File Number: WOC 634 of 2014

Judgment of: Judge Altobelli

Hearing date: 13 October 2015

Date of Last Submission: 13 October 2015

Delivered at: Wollongong

Delivered on: 21 October 2015

REPRESENTATION

Solicitors for the Applicant: Fulcrum Legal

Solicitors for the Respondent: Neil Jones Solicitor

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

(1)The Orders made 7 April 2015 be varied as follows:

(a)By the addition of the following order;

(i)That the child, X, born (omitted) 2011, live with the mother.

(b)Orders 1, 2 and 3 be discharged and the following Order be made in substitution for those Orders:

(i)That the child spend time with the father, unless otherwise agreed:

A.     From 10am until 4pm on Saturday 17 October 2015;

B.     From 10am until 2pm on Sunday 18 October 2015;

C.     From 10am until 6pm on Saturday 21 November 2015;

D.    From 10am until 3pm on Sunday 22 November 2015;

E.     From 10am until 6pm on Saturday 19 December 2015;

F.   From 10am until 4pm on Sunday 20 December 2015;

G.    From 10am on 2 January 2016 until 6pm 3 January 2016;

H.    From 10am until 4pm Monday 4 January 2016;

I.   From 10am Saturday 25 January 2016 until 4pm Wednesday 27 January 2016;

J.   Thereafter:

i.      During NSW Public School Terms from 10am Saturday until 4pm Sunday on the 3^rd weekend of each month, with the father to collect the child from the mother at McDonald’s Family Restaurant in (omitted) each even month; and with the mother to deliver the child to and collect the child from McDonald’s Family Restaurant at (omitted), each odd month;

ii.      During NSW Term 1, 2 and 3 NSW Public School holiday periods from 10am the first Thursday of the holiday period until midday on the second Monday of the holiday period;

iii.      Such further times as the parties may mutually agree.

(2)For the purpose of facilitating the time the child spends with the father, pursuant to Order (1)(b)(i)(A)-(I) and (1)(b)(i)(J)(ii) for the holiday period at the end of Term 2, that the mother deliver the child to the father and collect the child from the father at McDonald’s Family Restaurant in (omitted).

(3)For the purpose of facilitating the time the child spends with the father pursuant to Order (1)(b)(i)(J)(ii) for the holiday period occurring in at the end of Terms 1 and 3, the father collect the child from and return the child to McDonald’s Family Restaurant in (omitted).

(4)The father ensure that time the child spends with the father overnight occur in the substantial presence of his mother or stepfather.

(5)The mother be at liberty to contact the Paternal Grandmother or paternal step grandfather, at 6pm on any occasion the child is to spend overnight with the father, to ensure their presence.

(6)Each parent be restrained from:

(a)Denigrating the other parent or any member of that parent’s family or household, and shall forthwith remove the child from the presence of any other person who does so;

(b)Swearing at or in the presence or hearing of the child.

THE COURT FURTHER ORDERS THAT:

(7)The proceedings are transferred to the Federal Circuit Court, Orange Circuit, to be listed for directions on 8 February 2016 at 9:30am in the Dubbo Registry. 

THE COURT NOTES THAT:

1. These Orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules as follows:
1. to change the numbering in Order 1(b)(i), from (1)-(10) to (A)-(J); and
2. to change the numbering in Order 1(b)(i)(10), from (a)-(c) to (i)-(iii).

IT IS NOTED that publication of this judgment under the pseudonym Lyle & Lyle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 634 of 2014

MR LYLE

Applicant

And

MS LYLE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.In the matter Lyle, I provide the following ex tempore reasons.  This matter came before me last week on 13 October 2015.  It relates to a child, X, born (omitted) 2011.  X is nearly 4.

2.The Applicant is the Father and the Respondent the Mother.  The issue that the Court was asked to adjudicate on related to X’s time with her father. 

3.I was greatly assisted in this case by the preparation undertaken by each of the parties’ solicitors.  I am going to incorporate, into these ex tempore reasons, the chronology that was prepared by the Independent Children's Lawyer, Ms Volk, that seems to have drawn on the evidence of both parties.  This chronology is contained at Schedule One of these reasons.

4.In addition, I am going to incorporate into my reasons for judgment at Schedule Two, the schedule entitled Summary of Subpoenaed Material, which contains a review of the documents that came into evidence.

5.The Case Outlines that have been filed on behalf of both parents referred to the documents that they rely on together with the Orders that they propose.

6.One of the Orders sought by the Mother included a change of venue of these proceedings once interim orders are made relating to X.

7.There are issues of practical difficulty in this case.  Not just because of geographical distance but because of the lack of trust and the lack of communication that exists between the parents.

8.The Court has had regard to the evidence and to the submissions made on behalf of each of the parents as well as the Independent Children's Lawyer.

9.The Court adopts, as its own, the discussion of the issues as well as a discussion of the relevant statutory provisions and the interpretation thereof that is contained in the Independent Children's Lawyer’s Case Outline.  I incorporate these matters as if they were my own reasons:

Issues

13.    The issues are:

(a)The mother alleges the child has returned from spending time with the father, suffering from a sore, red vagina; that the child is resistant to spending time with the father, and that the child suffers from nightmares and bedwetting, following spending time with the father, and asserts the time the father spends with the child ought to be supervised by a paternal family member;

(b)The mother asserts travelling to (omitted) to facilitate the child spending time with the father is beyond her financial means, and inconvenient to her and her other children;

(c)The mother asserts that the conduct of these proceedings in Wollongong is inconvenient to her, and made more difficult because she has the primary care of three young children.

(d)The father asserts that it is difficult for him to travel to Orange and pay for accommodation, as he has no friends or family in Orange.  The father asserts that the mother has family and friends that she can stay within the (omitted) area, and believes that the mother facilitates the child Y’s time with her father in (omitted).

(e)The father is opposed to the transfer of the proceedings to Orange, due to the cost of travel and accommodation to attend court, and because all the legal professionals are located in Wollongong.

(f)The father believes there is no need for his time to be supervised.  He asserts the mother’s allegations are disingenuous, the child is happy and confident in his care and he is capable of meeting the child’s needs.  (Father’s aff 9.10.15 para 11, 18, 30)

2.The issues from the perspective of the Independent Children’s Lawyer, are:

(a)The child has spent limited and sporadic time with the father during her lifetime, until the making of interim orders by this Court.  The child has had a very limited opportunity to develop a meaningful relationship with her father;

(b)The father appears to have had an issue with alcohol consumption, and anti-social behaviour when intoxicated.  The father has submitted to breath analysis since the first interim orders made by the court.  Neither party reports there has ever been a positive reading.  The paternal step grandfather made a statement to police in October 2014, the father has remained abstinent from alcohol since approximately December 2013.  Despite the presence of records to support the mother’s contention about the father’s behaviour when intoxicated, there do not exist any records produced under subpoena that indicate that the father’s consumption of alcohol remains a current factor presenting a risk for the child;

(c)The mother alleges the child is resistant to spending time with the father.  The father denies this and says the child enjoys her time with him, and identifies him as her father;

(d)The geographic distance between the parties’ homes;

(e)The limited financial means of both of the parties;

(f)The impact on X and her sisters, of the travel required to facilitate spending time with her father;

(g)The mother’s negative view of the father;

(h)The father’s allegation of the mother’s behaviour in front of and directed to the children, in particular, swearing in front of the children and is unempathic toward them;

(i)The inability of the parties to communicate or co-parent, co-operatively.

(j)It is noted by the Independent Children’s Lawyer that the mother reported her allegations to Child Protection Helpline.  Documents produced by the NSWPS indicate that on 14.7.2015 the referral to the Joint Investigation Response team was rejected on the basis that it did not meet the JIRT criteria for sexual abuse – “No disclosure of sexual assault, -No evidence of sexual assault.  This matter has been referred to (omitted) Community Services Centre for further assessment/intervention.”

(k) The FACS file is unavailable.

3.  Further matters for consideration:

(a)It is inferred by the Independent Children’s Lawyer, that the mother is no longer in a relationship with Mr A, Z’s father, and it is not known what arrangements are in place for Z to spend time with her father, or what impact that might have on any spending time with arrangements for X;

(b)It is not known whether there is any risk posed to X by Mr A as the circumstances of the inferred separation of the mother from Mr A are not known;

(c)It is not known what arrangement exists for the child, Y, to spend time with her father, and whether any such arrangement presents any risk to X, or whether X’s visits with her father might be aligned to coincide with the time Y spends with her father;

(d)The documents apparently produced by the Department of Family and Community Services cannot be located in the Registry.  It is not known why Y spent the first several years of her life in the care of the maternal grandmother and whether this was pursuant to a care order, or a voluntary arrangement between the mother and the maternal grandmother.  It is noted that the mother was aged only 20 when Y was born;

(e)It would have been preferable for the mother to make and agitate her application for the transfer of proceedings prior to the appointment of the Independent Children’s Lawyer.

Procedure

14.In Goode v Goode FamCA 1346 the Full Court suggested in an interim application the court adopt the following framework:

(a)Identifying the competing proposals of the parties;

(b)Identifying the issues in dispute in the interim hearing;

(c)Identifying any agreed or uncontested relevant facts;

(d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

(f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i)If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k)Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Section 61DA(3) - Equal shared parental responsibility

15.The father seeks both interim and final orders for equal shared parental responsibility.  The communication between the parents is poor as best, and hostile at worst.  The child lives primarily with her mother in an area distant from the father’s home.  The father has not participated in parenting the child in a significant way since her birth.  The mother makes allegations of violent, hostile and antisocial behaviour by the father, when intoxicated.

16.On an interim basis, it is submitted that the Court should decline to make an order allocating parental responsibility.

Section 65DAA

17.Neither party seeks an order for equal time, or substantial and significant time, however, the father does seek block periods of 5 consecutive days during the holiday period, and otherwise, day only on one occasion each month.

Section 60CA

18.    The best interests of the child are paramount.

Section 60CC(2)(a) – Benefit to the child of having a meaningful relationship with both of the child’s parents

19.The child would benefit from having a meaningful relationship with both of her parents if she can be protected from any risk, including being exposed to hostility between her parents, any negative views held by either parent about the other, and family violence of any kind.

Section 60CC(2)(b) – Protecting the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence

20.The mother alleges the father has been violent to her prior to X’s birth (para 11, aff 29.10.14)

21.The mother alleges the father has abused her by voice and text message, harassed her (NSWPS record 25.5.2011), and threatened to slit the mother’s throat (Mother’s aff 29.10.14, AVO made 3.6.2011).

22.The mother alleges the father was abusive when intoxicated, in front of X and Y in December 2012 (Mother’s aff 29.10.14 para 52(r)), and had to change her phone number as a result of continuing abusive text messages and telephone calls when the father was intoxicated during Feb to May 2013 (Mo’s aff 29.10.14 para 52(u)).

23.Threats were exchanged between the father and her then partner Mr A (NSWPS 26.10.14).

24.The father alleges that the mother swears at the child and fails to attend to her needs (Fa’s aff 9.10.15 para 51).

25.Both parents have a history of involvement with the police.  There are 30 events involving the father, 10 of which involve allegations of assault/AVO as the person of interest.  There are 17 events involving the mother, 3 of which relate to domestic violence with the mother as the person named.

26.The mother makes allegations that the child returns from spending time with the father with a red and sore vagina and experiences night terrors and bedwetting following spending time with the father.

27.The mother’s report to the Child Protection Helpline has been rejected by JIRT. 

28.The mother appears to have confidence in the father’s family, that they could protect the child from any harm, when in the care of the father, given she proposes them as supervisors.

29.It is noted that the father’s family assisted the mother to relocate, and reported their son missing in 2013 as they were unable to contact him and were concerned about him.  The paternal grandmother and her husband informed police that the father had previously threatened self-harm.  It transpired the father had been out late, drinking with a friend, and denied any thoughts of self-harm.

30.It can be reasonably inferred that the paternal family are insightful and protective.

31.The father has been diagnosed with depression, which he says is reactive to the circumstances relating to his attempts to spend time with X.  The father receives treatment for his depression.

Section 60CC 3(a) – Views expressed by the child

32.The Independent Children’s Lawyer has not, at the time of writing, had the opportunity to meet with the child, due to the distance, and recency of her appointment.  The child is very young and any view expressed would not be a matter upon which the court could place any significant weight.

Section 60CC (3)(b) - The nature of the relationship of the children with each parent and other persons.

33.The child has been in the care of the mother since birth.  It would be assumed that X would have a significant bond with her sister Y, who appears to have returned to the mother’s care when X was approximately 15 months old, and an attachment to her younger sister, Z.

34.The child has not had the opportunity to any spend significant time with the father.

35.The child has spent overnight time at the father’s home, on occasions when the mother has stayed there also, and at times when the mother has stayed at the father’s home, but the child has remained in the father’s care during the day time.

36.The father deposes to various members of his family having the opportunity to join in spending time with X, and that she is familiar with them and enjoys spending time with them.

Section 60CC(3)(c) – The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

37.It is the father’s position is that the mother has frustrated or obstructed him spending time with X, and repeatedly informed him that she would dictate when and how X would spend time with him.

38.The mother asserts that she has encouraged and facilitated the father’s time with the child, which only occurs by reason of her undertaking significant travel, or at the father’s convenience.

39.The father does not wish to travel to (omitted) to spend time with X, as a result of the incident in October 2014, recorded in the police statements annexed to his affidavit of 9.10.15. 

40.The father is of the view that not spending time with X in the (omitted) area is protective.

41.The mother’s allegation that the child is at risk in the father’s care, which the father denies, presents a significant obstacle to X developing a meaningful relationship with the father, or for the time she spends with the father to increase to block periods of time during holiday or other periods, unless the court can be satisfied any such risk can be managed, so that it is not an unacceptable risk. 

42.It would appear that the mother is opposed to the father ever developing a close and continuing relationship with her father, given the final orders sought by her, the proposing of which, preceded the mother’s allegation that the child has returned from spending time with the father with a sore and red vagina.

Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from parents

43.The changes proposed by the mother are not significant from the child’s perspective.  It would not be anticipated that the presence of paternal family members during the time the child spends with the father would impact negatively on the child.

44.The changes proposed by the mother, anticipate the child spending time in the area local to where she lives, and on occasions, local to where the father lives. 

45.The father proposes changeover continue to occur in (omitted) during school terms.  This is still a significant distance from the father’s home, and it is not known whether the father proposes to remain in the (omitted) area, or travel to his home in (omitted) and back to (omitted) on the 3^rd Saturday of each month.

46.If such travel is proposed, this would significantly impact on the quality of the time X spends with her father.

47.It is submitted that, absent any risk, the child would benefit from spending time with the father, at his home and in the area local to where he lives, so that the child can develop familiarity with his home and family, and enjoy a sense connectedness to her paternal kin, and a sense of being part of his family.  This time could not reasonably be facilitated during the time proposed by either party during school terms.

Section 60CC(3)(e) – The practical difficulty and expense of children spending time with a parent

48.This is a significant issue for both parties.  The distance between their respective homes, and the limited funds available to each parent impacts on the frequency with which the child is able to spend time with the father.

49.The quality of the time the child spends with the father is negatively impacted upon by the travel time required, when such time is limited to day only time, once each month during school terms.

Section 60CC(3)(f) - The capacity of each parent to provide for the needs of the children including emotional and intellectual needs

50.The father asserts the mother’s parental capacity has significant deficits.  The father provides examples of the mother swearing at and in front of the children, denigrating and abusing him in front of X and her extended family, and failing to properly ensure her safety.

51.The mother asserts the father has had very limited engagement in meeting the child’s needs and has limited parental capacity.

52.The father appears to enjoy the significant support of his extended family.  The father describes his mother as very experienced with children, both professionally and as a parent and grandparent.  It would appear that the mother shares the view that the father’s extended family provide a positive and protective experience for the time the child spends with the father.

Section 60CC(3)(g) – The maturity, sex, lifestyle and background of the child or either of the child’s parents

53.The child is very young.  She is at an age where she is entirely dependent upon her caregivers to meet her needs.

54.The father says he is now abstinent from the use of alcohol, and neither party reports any occasion when the breath analysis returned a positive reading.

55.The father alleges the child Y was in the care of her maternal grandmother for the first 7 years of her life because the mother did not wish to be tied down.

56.The mother deposes to placing Y in her mother’s care because she was suffering severe depression at that time.  It is not known how long the mother’s depression continued, but the mother deposes to being medicated and receiving counselling for depression in 2007 (para 51 aff 28.10.14).

Section 60CC(3)(h) - Whether the child is an Aboriginal or a Torres Strait Islander

57.    Not identified by either party.

Section 60CC(3)(i) – The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents

58.The father deposes to meeting his child support obligations, and providing further funds, clothing, furniture and other items when requested by the mother.  The father also deposes to he and his family providing items for the mother to assist her in accommodating herself and X when she moved to (omitted).

59.The mother has facilitated the child travelling to (omitted), and (omitted) at times, to spend time with the father.

60.The father deposes to his attempts to develop a meaningful and ongoing relationship with the child, which he says has been obstructed by the mother.

61.The mother alleges that during the child’s time with the father on at least two occasions, he failed to change her nappy or provide her with lunch (Mo’s aff 28/10/14 para 24).

62.The mother raises concerns about the child not using the bathroom whilst in the father’s care (Mo’s aff 27/8/15 para 85).  This is denied by the father.

63.The mother has been the child’s primary caregiver, having lived with her since birth (Mo’s aff 28/10/14 para 20).

64.The father raises concerns that the mother has placed the child on to her mother when she found it too difficult to take care of her (Fa’s aff 20/6/14 para 34).  The father, however, does not seek orders for the child to live with him.

Section 60CC(3)(j) – Any family violence involving a child or member of the child’s family

65.The mother alleges she has been the victim of family violence perpetrated by the father, fuelled by alcohol abuse (Mo’s aff 29/10/14, para 11).

66.The father alleges the mother is verbally abusive to him and his family  and is aggressive to them (Fa’s aff 20/6/14 para 9, para 68).

67.The father raises concerns about Y’s father, and the possibility that he presents a risk to X. (Fa’s aff 20/6/14 para 70).

Section 60CC(3)(k) – Any family violence order that applies to the child or a member of the child’s family

68.It appears that an ADVO was made in approximately May 2011 against the father, for the protection of the mother.  Neither party has provided a copy order or application.  The father alleges that this was made on a “without admissions” basis (Fa’s aff 20/6/14 para 57).

69.There are no convictions of the father for the breach of this order.

Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

70.    Not relevant on an interim basis.

Section 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant

71.The father currently lives with his mother and stepfather in a four-bedroom home. The paternal grandmother has 9 grandchildren, and is said to have a good rapport with all of them, including X (Fa’s aff 9.10.15 para 124).

72.Each party proposes limited time between the child and her father during school terms.

73.The mother does not propose overnight time on an interim or final basis.

74.The father proposes block periods of 5 days during school holiday times.

75.Given the geographic distance between the parties, it is the submission of the Independent Children’s Lawyer that, absent a risk of harm, the child would benefit from being able to spend time at the father’s home, which has the opportunity to develop toward overnight time.

76.The father lives with his mother and stepfather, who would presumably be present during any overnight time.

77.The mother seeks orders for the time the child spends with the father be supervised by the paternal family.

78.For the child to be able to spend consecutive days with the father, but not overnight, the mother or an alternate caregiver would need to be somewhere close to the father’s home, to minimise unnecessary travel for the child.

79.If the child is to travel from (omitted) to (omitted), it would be preferable that there be sufficient time for her to spend with the father, so that the burden of the travel does not outweigh the benefit to the child of spending time with the father in his local area and home.

80.If the court were to make the order proposed by the father for X to spend a block period of 5 consecutive days with the father, it is the submission of the Independent Children’s Lawyer, that the child have the opportunity to spend shorter periods of time in the father’s home, including overnight, to allow her and the mother to adjust to such an arrangement.

10.Because of these reasons I believe that, pending further order, it is in X’s best interests that Orders be made in terms of the Minute of Order proposed by the Independent Children's Lawyer.  I am going to mark that document “A”, initial it and date it today’s date.

11.The Court does believe, however, that the appropriate venue for these proceedings is the Orange Circuit of this Court.  When one has regard to the relevant rule about change of venue (r.8.01 of the Federal Circuit Court Rules 2001), I think the factors overwhelmingly point towards that change of venue.

12.Yes, there will be inconvenience for the Father, but being able to use the telephone will mitigate that in terms of Court attendances.  For the Independent Children's Lawyer, likewise.

13.I am going to transfer this matter to the docket of Judge Dunkley and list it for mention before His Honour on 8 February 2016 at 9:30am.

14.I believe that His Honour will be sitting in Dubbo, but apparently the Orange Circuit is managed when His Honour is sitting in Dubbo.

15.In any event, the Orders that I have made provide for X to spend regular time with her father and provides an equitable arrangement for the travel to be shared between the parents.

16.All further matters will be dealt with by His Honour Judge Dunkley in due course.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:     9 December 2015

Schedule One

Chronology prepared by the Independent Children’s Lawyer

DATE	EVENT	REFERENCE
(omitted) 1978	Birth of Father, now aged 37 years.	Father’s affidavit, filed 25/07/14, para 1.
(omitted) 1986	Birth of Mother, now aged 29 years.	Mother’s affidavit, filed 29/10/14, para 2.
(omitted) 2006	Birth of Mother’s child from a previous relationship, Y, now aged 11 years.	Mother’s affidavit, filed 29/10/14, para 6.
April 2006	Mother askes MGM to care for Y due to Mother suffering from severe depression. Alleges that she still saw Y weekly and spent overnight time with her.	Mother’s affidavit, filed 29/10/14, para 52(b).
Late 2008	Father alleges that Mother gave Y to MGM because she did not want to be tied down. Mother denies this in her affidavit (29/10/14), para 52(f).	Father’s affidavit, filed 25/7/14, para 12.
(omitted) 2008	The parties commence a relationship, after meeting earlier in the same year. Mother moves in with Father at PGM’s home.	Mother’s affidavit, filed 29/10/14, para 4.
Oct – Dec 2008	Mother moves into MGM’s house for two months, then to (omitted). Mother then moves to Sydney with new partner for 11 months, no contact between parties. Parties recommence relationship when Mother moves back to (omitted).	Father’s affidavit, filed 25/7/14, para 12; Mother’s affidavit, filed 29/10/14, para 52(f).
November 2010	Mother alleges incident occurred where Father, intoxicated, picked her up and threw her two metres onto a bed, following an argument.	Mother’s affidavit, filed 29/10/14, para 11.
December 2010	Mother finds out she is pregnant with X. Told Father she did not want to end up as a single Mother, and she would consider terminating the pregnancy if he did not want a child. Paternal grandmother urges Mother to keep the baby, stating that the family doesn’t believe in abortion. Father wants to keep the baby.	Mother’s affidavit, filed 29/10/14, para 14, 52(g).
February 2011	The parties separate.	Mother’s affidavit, filed 29/10/14, para 4.
25 May 2011	String of abusive texts and voicemails left by Mr Lyle to Ms Lyle. Reported to police. 13 voicemails and 293 messages in 5 weeks.	NSW Police subpoenaed material – reference 12 – 25/5/11.
June 2011	Mother alleges abusive behaviour from Father. Alleges that Father said to her “If you come back here to your house, I’ll be waiting to slit your throat.” Mother drove home to see Father’s car in her driveway, drove to (omitted) Police Station and reported threat. AVO issued on 3 June 2011.	Mother’s affidavit, filed 29/10/14, para 18.
August 2011	Mother relocates to (omitted), Father unhappy about the move but his parents assist Mother in relocating.	Father’s affidavit, filed 25/7/14, para 17-18; Mother’s affidavit, filed 29/10/14, para 52(j).
(omitted) 2011	Birth of child of relationship, X, now aged 4 years. Mother states that Father was not present during birth.	Mother’s affidavit, filed 29/10/14, para 5, 19.
August 2012	Father alleges that MGM stated that she did not want Y to return to Mother’s care, as she “swears too much.” Father calls Mother to discuss and argument ensues, Mother ends argument by saying that Father will never see the child again.	Father’s affidavit, filed 25/7/14, para 33 – 35.
December 2012	Father had spent the last two months with no contact. Mother contacts Father and then visits in (omitted) with X and Y. Father gives presents to both children. Father alleges Y said “I miss my Nan and want to go home. I don’t want to stay with Mum.” Mother alleges that Y wanted to go home due to Father being intoxicated and abusive.	Father’s affidavit, filed 25/7/14, para 38-40; Mother’s affidavit, filed 29/10/14, para 52(r).
February 2013	Father granted Legal Aid to participate in an Early Intervention Conference.	Father’s affidavit, filed 25/7/14, para 44 – 45.
February 2013 – 29 May 2013	Father has no contact with either X or Mother. Mother states that she changed her number because Father would send her abusive texts and calls when intoxicated.	Father’s affidavit, filed 25/7/14, para 46; Mother’s affidavit, filed 29/10/14, para 52(u).
29 May 2013	Father alleges he received text message from an unknown mobile number saying “have fun at mediation tomorrow, I’m not going.”	Father’s affidavit, filed 25/7/14, para 47.
30 May 2013	Father attends Conference, Mother does not attend and cannot be contacted.	Father’s affidavit, filed 25/7/14, para 49.
June - July 2013	Mother contacts Father and allows him to speak to X briefly.	Father’s affidavit, filed 25/7/14, para 50.
(omitted) 2013	Father visits X for her birthday. Up until this time, Father had only occasional brief phone contact with X, allegedly when Mother allowed.	Father’s affidavit, filed 25/7/14, para 52.
Late 2013	Mother commences new relationship with Mr A.	Mother’s affidavit, filed 29/10/14, para 39.
21 December 2013	Father visits X at a park to give her Christmas presents. Attends with his friend, Mr R. Father introduced to Mother’s new partner, Mr A. Mr A approaches Father and asks him to stop harassing Mother.	Father’s affidavit, filed 25/7/14, para 59-64; Mother’s affidavit, filed 29/10/14, para 52(y).
25 July 2014	Father states in his affidavit that he has not seen X since the visit of 21 December 2013.	Father’s affidavit, filed 25/7/14, para 81.
25 July 2014	Father files Initiating Application seeking equal shared parental responsibility, child to live with Mother, and Father to STW child once per month (increasing in time from 4 hours to overnight – 24 hours), holidays etc.	Initiating application filed 25/7/14
7 August 2014	Incident occurs, reported to Police – during changeover, Mr A, intoxicated, gets into Mr Lyle’s face and says “You’re a hard cunt, aren’t you?” Says the same thing when Mr Lyle returns X.	NSW Police subpoenaed material – reference 10 – 7/8/14.
26 October 2014	Incident occurs, reported to Police – argument ensues during changeover between Ms Lyle and Mr Lyle regarding prank phone calls and Ms Lyle’s partner, Mr A. Ms Lyle states “my partner is going to smash your face in.” Mr Lyle says “Your partner will get a visit at his front door, and I’m going to get him drug tested.”	NSW Police subpoenaed material – reference 9 – 26/10/14.
29 October 2014	Response filed on behalf of Mother seeking sole parental responsibility, child to live with Mother and for Father to STW child one weekend out of every four weekends, from 10am-3pm Saturday and 10am-1pm Sunday.	Response filed 29/10/14.
(omitted) 2015	Birth of Z, Mother’s child of with Mr A. Child now aged 9 months.	Mother’s affidavit, filed 31/8/15, para 3.
28 March 2015	Mother travels to (omitted) McDonalds with partner and three children, for Father’s visit with X. Alleges that X was hesitant in spending time with the Father.	Mother’s affidavit, filed 31/8/15, para 8 – 13.
7 April 2015	Orders made – Father to spent time with child on 3rd Saturday of every month.	Orders made 7 April 2015.
26 April 2015	Father visits to spend time with X, attends with his step-father.	Mother’s affidavit, filed 31/8/15, para 14-19.
23 May 2015	Mother travels to (omitted) McDonalds with partner and three children, for Father’s visit with X. Alleges that X was hesitant again. Mother alleges that X, on her return from visit with Father, complained of a “sore vagina”. Upon inspection, there was redness on her vaginal area. Mother alleges that X began wetting herself for a number of days afterwards.	Mother’s affidavit, filed 31/8/15, para 21 – 38.
20 June 2015	Visit at (omitted) McDonalds. Father asks if Mother can drop off X in (omitted) for overnight visit. Mother refuses. Mother alleges that X, on her return from visit with Father, again complained of a “sore vagina”. Upon inspection, there was redness on her vaginal area. Mother alleges that X began wetting herself again for a number of days afterwards, and experienced night terrors for 8 nights in a row.	Mother’s affidavit, filed 31/8/15, para 39 – 52.
3 August 2015	Orders made appointing Independent Children’s Lawyer.	Orders made 3 August 2015.
31 August 2015	Mother makes Application in a Case to have proceedings transferred to Orange FCC. Seeks Father to STW child on third Saturday of each month in (omitted) between 10am -4pm, and any other time as agreed between parties. Father’s time be supervised by paternal family member.	Application in a case filed on 31/8/15.

Schedule Two

Summary of Subpoenaed Material

REF	DATE	INDIVIDUAL	NOTES
1	Various	Mr Lyle	30 events involving Mr Lyle, 10 events involving assault/AVO as POI.
2	Various	Ms Lyle	17 events involving Ms Lyle, 3 events involving domestic violence (person named), 1 event of child/YP at risk. Various traffic, stealing and fraud incidents.
3	13/10/13	Mr Lyle	Mr Lyle as missing person – “drinking with a friend.”
4	25/4/10	Mr Lyle	Mr Lyle became abusive in public and directed to move on by Police, failed to move on, on 5 separate occasions. Arrested and conveyed to (omitted) Police Station.
5	16/9/09	Mr Lyle	Mr Lyle possible breach against AVO. Came home intoxicated and angry that his dinner had not been cooked.
6	11/03/08	Mr Lyle	Violent behaviour by victim towards parents. Mother “fears the POI when he has consumed alcohol as she does not know what he is capable of.”
7	12/08/07	Mr Lyle	Driving whilst under the influence of alcohol.
8	28/8/05	Mr Lyle	Incident where Mr Lyle assaulted a man he found in his ex-partner’s bed.
9	26/10/14	Ms Lyle/Mr Lyle	Incident where abusive argument ensues between Ms Lyle and Mr Lyle in regards to prank phone calls and her partner, Mr A, possibly in the presence of child.
10	7/8/14	Mr A	During changeover, Mr A gets in Mr Lyle’s face, saying “You’re a hard cunt aren’t you?” In the presence of child?
11	24/11/13	Ms Lyle	Ms Lyle accused of stealing from a home she cleaned.
12	25/5/11	Mr Lyle	Ms Lyle reports abusive behaviour from Mr Lyle – 293 messages and a number of abusive texts in a 5 week period.
13	14/6/10	Mr Lyle	Mr Lyle, intoxicated, had taken Ms Lyle’s phone after she told him that she would not continue the relationship. Threw phone on the road, breaking it.
14	20/3/09	Ms Lyle	Ms Lyle shoplifting from K-Mart.
15	14/7/15	X	Rejected sexual assault allegation regarding X/Mr Lyle.
16	Various	Mr Lyle	Criminal Record: 28/8/05 – Common assault/destroy or damage property - $600 fine + $65 costs. 12/08/07 – Drive with low range PCA - $600 fine, $70 costs, disqualification for 3 months.
17	Various	Ms Lyle	Criminal Record: 20/3/09 – assault officer in execution of duty, larceny (<$2000), use offensive language near public place/school – s10 Bond – 2 years, to maintain contact with (omitted) and Community Health Team.