DIXON & DIXON - [2012] FMCAfam 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIXON & DIXON

[2012] FMCAfam 119

FAMILY LAW – Interim arrangement for care of child aged nearly two years – nature of interim proceedings – primary care – allegations of unilateral parenting – psychiatric health of mother – best interests.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MR DIXON

Respondent:

MS DIXON

File Number:

ADC 16 of 2012

Judgment of:

Brown FM

Hearing date:

6 February 2012

Date of Last Submission:

6 February 2012

Delivered at:

Adelaide

Delivered on:

10 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Mark Mudri & Associates

Counsel for the Respondent:

Mr Noble

Solicitors for the Respondent:

Judith Jordan

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The child [X] born [in] 2010 live with the mother.
The father spend time with the child as follows:
(a)each weekend from 5:00pm Saturday until 5:00pm Sunday;
(b)a further twenty-four period during the week as agreed between the parties, but failing agreement to be from 5:00pm on Wednesday until 5:00pm the following Thursday.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 27 February 2012 at 2:15pm, to discuss the care, welfare and development of the child [X] born [in] 2010 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 30 April 2012 at 11:00am.
Further consideration of the matter is adjourned to 14 May 2012 at 9:30am for directions.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 16 of 2012

MR DIXON

Applicant

And

MS DIXON

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Dixon “the father” and Ms Dixon “the mother” are the parents of [X] born [in] 2010. These proceedings are concerned with interim or provisional arrangements for [X]’s care, pending a more comprehensive examination of how her best interests will be served in the longer term, if the parties themselves are unable to agree on those arrangements.
The father commenced these proceedings on 3 January 2012 – the first working day of the New Year. It is common ground between the parties that he had assumed care of [X], on 28 December 2011 and since that date the mother has had what Mr Dixon described as “supervised” visits with [X].
From the mother’s perspective, the father has dictated to her the terms and conditions on which she can spend time with [X] and has unilaterally assumed responsibility for her care. From the father’s perspective, he has only acted in this way because he is concerned about [X]’s welfare, whilst she is in her mother’s care, because he believes the mother remains psychiatrically compromised and is behaving irresponsibly.
It is the father’s position that [X], both at the interim and final stage, should continue to live predominantly with him. Initially, he proposed that any time [X] spent with her mother should be subject to supervision. The proposed supervisor is the child’s paternal grandmother, Mrs G, who has also filed affidavit material in the case and is undoubtedly a person who is significant to [X] as a result of the prior care which she has provided for the child.
The parties separated [in] 2011, when the mother and [X] moved out of the parties’ former family home, located at [address omitted]. She moved to a rented property, fairly close by, at [address omitted].
It is the mother’s position, at both the interim and final stage, that [X] should live predominantly with her. She sought a recovery order, from the court, to achieve this outcome. In her response, filed 19 January 2012, she did not propose specific orders as to how [X] would spend time with her father at the interim stage.
In addition to their respective applications regarding [X], both parties sought court injunctions restraining drug and alcohol use by the other parent and the power to subject that parent to random drug screen testing. Both parties have now provided a drug screen test, which is negative so far as the consumption of illicit drugs is concerned on the part of the person providing the relevant drug test.
Since 3 January, the parties have filed what has been described by counsel as “voluminous” affidavit material, which in each case is essentially a litany of criticisms of the other. The length of this affidavit material does not make it easier for the court to make findings of fact, in disputed circumstances, in the absence of credit findings arising from cross-examination.
Putting aside these criticisms, which in each case are serious and concerning, the main factual matrix is not complicated and can be summarised as follows:
·The parties married [in] 2007;
·The father is a self-employed [occupation omitted]. He resumed his full-time work, as a result of financial necessity, shortly following [X]’s birth;
·The mother breastfed [X] for the first nine months of her life;
·The mother experienced the symptoms of post-natal depression within months of [X]’s birth;
·She sought medical treatment for this depression, which was diagnostically confirmed, in late November of 2010;
·On 10 January 2011, she was admitted to the [omitted] Hospital for three days and then was transferred to the [omitted] Hospital. During this period, [X] was in the care of Mrs G and the father;
·Between 14 January and 4 February 2011, the mother was admitted to the [omitted] Hospital, with post-natal depression. [X] was admitted during this admission “in order to reduce the impact upon the mother/baby bonding that separation due to hospitalisation might otherwise produce.”;[1]
[1] See report of Dr C, psychiatrist dated 16 January 2012 being exhibit NRB1 to the mother’s affidavit filed 19 January 2012.
·Following her discharge from [omitted] Hospital, the mother consulted a psychiatrist Dr C from 23 February 2011 onwards. She last saw Dr C on 11 January 2012, after twelve previous consultations. He provided a report on 16 January 2012;
·The mother returned to the former family home, with [X], on 4 February 2011;
·The parties separated on 5 August 2011. From the mother’s perspective, she had been unhappy in the marriage for a considerable period of time. However it is her position that the father harboured hopes of reconciliation;
·Following the mother’s discharge from hospital to the current time, the father has continued in full-time employment;
·On 5 September 2011, the mother returned to work as a [occupation omitted] at [organisation omitted]. She acknowledges that she is now at work on a full-time basis, again as a result of financial necessity;
·It is common ground that Mrs G has provided extensive care for [X], both before and after the parties separated and both before and after the mother’s formal diagnosis with post-natal depression;
·Since the parties separated, the mother has been involved with three men in a “romantic” sense;
·On 28 December 2011, the father and Mrs G entered the mother’s premises to collect a pair of [X]’s shoes. Mrs G had been previously been provided with the key by the mother;
·Mrs G asserts that she was concerned about the cleanliness of the property and evidence that a male person was sharing them with the mother;
·Mrs G summonsed the father to the property and photographs were taken of a pair of nunchucks and a bong. Both items were obviously visible and were not concealed;
·Since 28 December 2011, the father has assumed responsibility for parenting [X], in conjunction with Mrs G;
·The father acknowledges that from 12 December 2011 onwards, he became aware that there was no prospect of him reconciling his relationship with the mother;
·Between the date of separation and 28 December 2011, the father spent regular periods of time with [X], including overnight time;
·Since 28 December 2011, the mother has been spending supervised time with [X]. This has been taking place at the former family home and has been for a few hours in duration, concluding usually with [X]’s bedtime.

The parties’ respective positions at interim hearing

It is common ground between the parties that the mother works between 8:45am until around 5:15pm each week day other than Wednesday, which she has off. Mrs G is involved with the father’s [omitted] business. She works from home, approximately two hours per day. The father will continue in his self-employment and proposes seeking assistance from his mother, to provide care for [X], whilst at work.
[X] attends a play group on each Friday from 11:00am until 1:00pm. She has a swimming lesson on each Sunday at 10:00am. The parties’ homes are separated by around five kilometres. Mrs G lives in the adjoining suburb of [Suburb omitted].
At the outset of the interim hearing before me, Mr Bowler, counsel for the father, indicated that his client took some comfort from the psychiatric report of Dr C, albeit that his client did not believe that the mother had been a completely accurate historian to Dr C and, as such, he did not necessarily accept the conclusions which Dr C had reached. In addition, it was said that Mr Dixon had noted the mother’s clean drug screen test. In these circumstances, the father no longer pressed for supervision of the mother’s time with [X].
Accordingly, at this point, the father seeks orders which can be summarised briefly as follows:
·[X] live with him;
·[X] spend time with her mother from 5:00pm on each Tuesday until 5:00pm the following Wednesday and from 5:00pm on each Friday until 5:00pm the following Saturday;
·He have sole parental responsibility for [X], at the interim stage;
·An independent children’s lawyer be appointed for [X].
In addition, the father no longer persists with his application that the mother undergo random drug screen testing. It is also implicit in his position that [X] would spend significant periods of time with Mrs G, with whom it is asserted she enjoys a significant relationship.
The mother’s application is silent as to how parental responsibility for [X] should be allocated at the interim stage. However, like the father, it is her position that the parties should have equal shared parental responsibility at the final stage. How the parties rationalise this dichotomy is not altogether clear to me. It is however the father’s position that it would not be in [X]’s best interests for the parties to have equal shared parental responsibility at the interim stage.
The mother’s position is that [X] should be returned to her immediate care and until the final disposition of the parties’ competing applications remain living predominantly with her. Her counsel, Mr Noble, in oral submissions to the court, proposes that, in these circumstances, [X] should spend two periods of time, with her father, each of 24 hours duration, each week.
Like the father, the mother does not persist in her application for random supervised drug screen testing. In addition, again like the father, she will remain in full-time employment. In these circumstances, she proposes relying on the assistance of her mother ([X]’s maternal grandmother) Mrs S to assist her in caring for [X]. Mrs S is willing to move into the mother’s home to provide this care.
Accordingly, it is interesting to note that, at this stage of the proceedings and after the distillation of extensive material, which catalogues the parties’ respective criticisms of each other, their respective applications are reversed mirror versions of the other’s.
The issue being with whom of them [X] should predominantly live. It being mutually agreed that the strength of [X]’s relationship with the other parent dictates she should spend two overnight periods each week with that parent and impliedly there are no welfare concerns associated with such an arrangement. Necessarily this mutual concession undercuts the gravity of many of the criticisms the parties have levelled at one another.
In an evidentiary sense, at this stage, the parties each assert that the material available to the court indicates that it is he or she, who has been [X]’s “primary carer” up to this stage. As I have explained to the parties, this is not an easy issue to determine at the interim stage, particularly as it is one which is likely to require some form of professional expertise to determine.
In his interim application, the father sought the preparation of an urgent family assessment report. Tellingly, he would see the urgency of such a report being abnegated if the court makes the interim orders sought by him. The mother adopts a similar approach.

The father’s case

Mr Dixon has personally deposed two affidavits in support of his application. The second affidavit, which was provided to the mother on the Friday prior to the Monday hearing in this matter, is 33 pages long and consists of 180 paragraphs. To it are annexed a series of copy black and white photographs, which are largely indecipherable.
In addition, he relies on two affidavits of Mrs G. The second of these affidavits is eight pages in length. He also relies on an affidavit of Ms J, who is Mrs G’s [employee] and an affidavit of Ms H, who is [X]’s paternal aunt.
This is too much affidavit material. The length of the material did not assist Mr Dixon’s case. No reference whatsoever was made to the affidavits of Ms J and Ms H during the submissions of Mr Bowler. The volume of affidavit material indicates the intensity of the controversy between the parties rather than the germane issues in the matter, which could have been put much more succinctly.
The more recent affidavits of the father and his mother arose because of the contents of the mother’s own affidavit, filed on 19 January 2012, which is highly critical of Mr Dixon but fairly concedes the assistance Mrs G has given to the mother, in the past, in respect of the care of [X]. It seems self-apparent that there is little prospect of relations being repaired between Ms Dixon and Mrs G at this stage.
The father asserts that, given the mother’s self acknowledged depression, which arose prior to the parties’ separation, he assumed a very significant role in caring for [X]. Although Mr Dixon does not explicitly characterise himself as such in his affidavit material, it is the submission of Mr Bowler that Mr Dixon should be regarded as [X]’s primary carer, either alone or in conjunction with Mrs G.
Essentially, Mr Dixon would rank himself and Mrs G higher than the mother in the hierarchy of adults who are important to [X]. It is on this submission that the father’s case primarily rests.
It is further the father’s position that it is incontrovertible that [X] has been in his predominant care, since 28 December, a period now approaching seven weeks. He asserts that this is a significant period of time, when [X]’s age is considered. As such, he asserts that [X] is well settled with him, in the environment of the former family home, with which she is very familiar.
In these circumstances, he asserts that there is no good reason to significantly change arrangements for her care, particularly when question marks remain surrounding the mother’s mental health and personal judgment, particularly so far as her choices of personal relationship are concerned.
The father has criticisms of Mrs S. It is his evidence that Mrs S herself has a history of mental instability and has a limited level of relationship with [X]. It is also Mr Dixon’s position that the relationship between the mother and Mrs S is a difficult and strained one.
From Mr Dixon’s perspective, the evidence of the bong and nunchucks when discovered in the mother’s allegedly unsanitary home, were the final straw, so far as allowing [X] to remain in her mother’s care.
It is his position that the mother has given an unsatisfactory and incomplete account of her personal life, since the parties separated. It is further his position that the mother displayed a serious error of judgment in exposing [X] to a person who uses a bong and is willing to display it to a child of [X]’s tender years. He takes a similar in respect of the nunchucks.
It is also a significant factor in Mr Dixon’s case that Ms Dixon has made no specific complaints about the level of care, which he is currently providing for [X] or indicated in any way that [X] is distressed by the current arrangements. In the submission of his counsel, this indicates that [X] is likely to have a close relationship with her father and there is no compelling reason to change the current arrangements for her care.
For all these reasons, the father urges the court to make the orders, which he seeks. In his submission, the spend time with orders, which he proposes, will ensure that [X] maintains a proper level of relationship, whilst at the same time, protecting her from the risk of harm arising from the mother’s psychiatric condition and potential errors of judgment arising from her choice of relationship partner.
It is also submitted that it is naïve and lacking in “child focus” for the mother to think that Mrs S could be easily slotted in to replace Mrs G in ongoing care arrangements for [X]. It is also asserted that there is ample evidence to indicate that the mother has an uneasy relationship with her own mother and Mrs S has a history of mental instability.

The mother’s case

Ms Dixon relies on an affidavit of herself and one of her mother, Mrs S. As previously indicated, it is the mother’s position that she has not had an opportunity to respond to the recently filed affidavits of the father and Mrs G, which are critical of her.
The mother characterises her marriage with the Mr Dixon as being an unhappy one. She describes the father as a “controlling and abusive partner, who, on numerous occasions … became physically violent towards me.”[2] It is also her case that the father regularly used marijuana and drank alcohol to excess. In these circumstances, she asserts that it is hypocritical of the father to take such offence to the bong, which he and his mother photographed in her home.
[2] See mother’s affidavit filed 19 January 2012 at paragraph 6.2
In any event, it is Mrs Dixon’s evidence that she has terminated the relationship with the person concerned because she found it unacceptable for him to bring the numchucks into her home. She further asserts that Mrs G would have had to enter her bedroom to find the item in question, which she regards as an unacceptable breach of her privacy.
The mother refutes any suggestion that she has exhibited any degree of irresponsibility in the conduct of her personal relationships, which she asserts are her business not the father’s or Mrs G’s. She denies that she has difficulties with alcohol consumption and drug use and points to her clear drug screen test in support of her assertion. As previously indicated, the father does not seek to look behind this drug screen test result.
Much of the father’s answering affidavit material dealt with his denials of the mother’s specific claims of being the victim of family violence. He also utilised his second affidavit to reiterate his concerns about the mother’s mental health and refute the medical report of Dr C. In particular, he asserted that the mother had been diagnosed as suffering from a borderline personality disorder.

The mother acknowledges that she was severely psychiatrically unwell in 2010 and the first portion of 2011. However, it is her position that her illness, which is properly characterised as major depression in the postnatal period, with borderline personality traits, has been properly treated and has largely resolved. In regards to the latter matter, she points to Dr C’s report and his opinion that a diagnosis of a personality disorder is not warranted.
Dr C reviewed the mother on 11 January 2012. Obviously this was after the father had assumed care of [X], which I accept was a difficult and stressful period for the mother. At this stage, she was continuing to take an antidepressant medication, with no reported side-affects.
In this context, Dr C described her as follows. She was well presented, with no thoughts of suicide. As such, it was felt unnecessary to increase her dosage of antidepressant medication. Dr C also considered that her depression remained under control, although he described her as mildly anxious. She was reported as being able to continue at work.
In all these circumstances, Dr C provided the following opinion:
“With regard to Ms Dixon’s ability to safely care for her daughter [X], it is my opinion that Ms Dixon’s recent episode of depression and anxiety does not adversely affect her ability to be the primary carer for her daughter. In my opinion she is fully fit from a psychiatric perspective to be the primary custodial parent of her daughter [X].”
Dr C was optimistic about Ms Dixon’s prognosis. He thought she had made a full recovery from her earlier episode of depression. Importantly, it was his opinion that the mother had shown a “remarkable resiliency” in psychiatric terms given the current situation prevailing so far as [X]’s care was concerned.
It is the mother’s position that she has been [X]’s main provider of care. In support of this assertion, she points to the fact that the child remained in her care, whilst she was hospitalised at [omitted] Hospital. The rational of this arrangement being to maintain the pre-existing bond between mother and child.
It is also the mother’s position that, on the parties’ separation, in early August of 2011, [X] remained in her care, ostensibly with the father’s acquiescence. She asserts that this acquiescence can only be explained by the father’s acceptance of the fact that she was [X]’s main provider of care.
It is also her position that between August and December of 2011, Mr Dixon was content to allow [X] to remain in her care, notwithstanding the fact she had resumed full-time employment. He was content to allow this arrangement to continue until he discovered that, from the mother’s perspective, there was no possibility of the parties resuming their relationship together.
In the mother’s submission, it is this realisation which has been the catalyst for the father’s actions on 28 December and afterwards, which she would categorise as unilateral and indicative of his controlling and dictatorial attitude.
It is Ms Dixon’s view that Mr Dixon does not currently and has not in the past provided a significant level of parental care for [X]. Rather, it is her position that, when [X] has nominally been in the father’s care, these responsibilities have been discharged by Mrs G. As previously indicated, the mother does not dispute that Mrs G was and remains an important person in [X]’s life but she does not accept that she can be described as [X]’s primary carer.
Between 28 December and 17 January, Ms Dixon has seen [X] on 15 occasions. All these occasions have occurred at Mr Dixon’s residence. The mother deposes that, during these periods, the father goes outside “to smoke and do other tasks.” In these circumstances, she asserts that she is able to bathe, sing and read to [X], with the door closed.
From this I take it the mother asserts that the father is utilising his self determined need for supervision on the mother as a pretext for controlling her, rather than because he actually has concerns about her interactions with [X]. In these circumstances, she would characterise Mr Dixon as having a flawed insight into the responsibilities of being a parent.
Mrs S corroborates her daughter’s evidence regarding the violent nature of the marriage between the parties. She also asserts that she never observed Mr Dixon perform any tasks arising from [X]’s care, during periods when she visited the parties in their home prior to their separation. At this juncture, I am not in a position to ascertain the truth or otherwise of the mother’s allegations of violence, which are vigorously refuted by the father.
As indicated earlier, it is Ms Dixon’s position that her mother and father will move into her home, in the short to medium term, to assist her in caring for [X]. Mrs S, who normally lives in [location omitted], a rural area of South Australia, confirms the truth of this assertion.
It is the father’s position that the relationship between the mother and her parents has been historically strained. There is some confirmation for this assertion arising from the psychiatric report of Dr C. To Dr C, the mother reported a strained relationship with her mother and a distant relationship with her father.
Mrs S refutes any suggestion that she is currently psychiatrically compromised. She acknowledges that she has been diagnosed with depression, as a consequence of being assaulted whilst at work. Mrs S has [omitted] qualifications and was assaulted by a male [client], whilst working a night shift in the mid 1990s. She has been prescribed antidepressant medication.
Mrs S has not specifically deposed as to the nature of her relationship with [X]. It is however the position that she visited [X], during one of the supervised visits stipulated by Mr Dixon. During this visit, she described [X] as being upset, when her mother had to leave.
Mrs S deposes as to her opinion that [X] is closely bonded to her mother. It is also Mrs S’s view that [X] will be missing her mother, whilst the current regime continues. Mrs S supports the mother’s application.

The legal principles applicable

Interim hearings have to take place in shortened form. There is no time available for the cross-examination of the parties concerned. It is rarely possible for there to be any detailed expert assessment, of the family concerned, at the interim stage. Accordingly, interim hearings are not designed to determine long-term or final arrangements in respect of the child concerned.
The hallmark of many, if not all, interim hearings concerning children is that they arise against a background of emergency, after some crisis has arisen in the lives of the parties involved, most often at their separation or some other significant event. So it is in this case.
Such situations cause great difficulties for the court. It may not be able to make findings of fact about issues in dispute between the parties concerned because all the evidence needed to make such a finding is not yet to hand. Yet the urgency of the situation and the degree of conflict and disputation between the parents concerned require that some form of decision be made, pending more detailed inquiries.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act 1975 [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[3], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[3] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

Consideration of the applicable section 60CC factors

a) The primary considerations

[X] is not yet two years of age. Accordingly, she must be regarded as a vulnerable and dependent child. She was breast fed by her mother and remained in her mother’s care, whilst Ms Dixon was hospitalised at the [omitted] Hospital for approximately three weeks in early 2011, prior to [X]’s first birthday.
In addition, since the parties separated, in August of 2011, [X] lived predominantly with the mother, albeit she was working during the day. Necessarily, the mother tended to [X] before and after her work commitments and during at least part of each weekend. Although I am not in a position to make a definite finding of fact regarding whether this level of care amounts to “primary care”, in my view, it indicates a very significant level of relationship between mother and child.
Mr Dixon concedes that he has remained in the paid workforce since shortly after [X]’s birth. I am not critical of him for this. After all, the provision of financial support for a family is essential to its ongoing wellbeing. However, in these circumstances, it seems unlikely that he can be unequivocally regarded as [X]’s “primary carer”.
The strength of the father’s case relies on the court accepting his (and Mrs G’s) assertion that during much of 2010 the mother was so psychiatrically compromised that she was unable to form any form of attachment with [X]. The difficulty with me accepting this submission is that during 2010 neither the father nor Mrs G pursued any active intervention so far as the mother’s involvement with [X].
Certainly, Mr Dixon did not cease his work nor, on the mother’s admission to [omitted] Hospital, did he stand in the way of [X] joining her mother, in this setting. In addition, Mr Dixon does not refute Dr C’s view that the rational of this placement was to maintain the level of bonding between mother and child.
It is, in my view, also significant that Mr Dixon did not take immediate action in respect of care arrangements for [X], following the parties’ separation. I accept that Mrs G remained an active part of [X]’s care and accordingly I am not in a position to refute his assertion that this arrangement provided a “safety net” for [X], which assuaged his concerns.
I also acknowledge that I am not in a position to positively refute the father’s contention that Mrs G may indeed be [X]’s primary carer as a result of her involvement with the child, particularly during 2010, when the mother was obviously significantly unwell. However, Mrs G is not a party in these proceedings and has not sought any specific orders in her favour.
At this stage, I have no reason to think anything other than that both the father and the mother (and indeed Mrs G) love [X] very much indeed and want to be closely involved with her in the future. Accordingly, it is clear that [X] is likely to benefit, both now and in the future, from having a meaningful level of relationship with both of her parents.
Meaning, in parental relationships, comes from being able to engage with a child in a variety of settings. Necessarily, it takes time for a parental relationship to be and remain meaningful but the meaning, in such relationships, does not come merely from the extent of time spent. Meaningful, in this context, has both a qualitative and quantative connotation.
Given [X]’s age, it may be potentially distressing for her to move frequently between her parents, without regard for her need for stability and regularity in routine. Both parties recognise this, as each asserts that [X] needs to live predominantly with one of them and see the other regularly. It is for this reason that there has been significant emphasis, in the case, on the issue of primary care.
In my view, the proposals made by both the father and the mother (in each case essentially the same) for [X] to spend time with the other would ensure that [X] is able to continue to have a meaningful level of relationship with that parent and indeed consolidate and extend the relationship.
On balance, on the basis of the evidence currently available to me, it seems more likely than not that the mother has been [X]’s main provider of care up to this stage – certainly so far as the parties themselves are concerned. In this context, it seems to me that the mother’s proposal is the one more likely to promote the service of [X]’s best interests. I am also satisfied that this arrangement will ensure that [X] continues to have a meaningful level of relationship with her father.
The father asserts that there is an unacceptable risk of [X] sustaining some level of physical or psychological harm as a result of the mother’s potential to suffer psychiatric illness. Necessarily, Mr Dixon asserts that the court needs to protect [X] from suffering either abuse or neglect because the mother may be ill in future.
This is not a position accepted by her treating psychiatrist, Dr C. I accept that Dr C has been extensively involved in managing the mother’s condition for a period of approximately twelve months. It is noteworthy that he considers that Ms Dixon has dealt with the current circumstances confronting her, which undoubtedly must be stressful, without suffering a relapse of her illness.
In addition, and perhaps more importantly, the father acquiesced to [X] leaving the family home, when the parties separated in August of 2011. This state of affairs, in my view, significantly undercuts the strength of his submission that he has long harboured serious concerns about the mother’s psychiatric health and her capacity to adequately parent [X]. If this be the case, those concerns were not sufficiently serious to galvanise him to bring proceedings in the period immediately following the parties’ separation.
The mother’s case is that the father has opportunistically seized upon her illness to justify his unilateral assumption of [X]’s care because of his perhaps understandable disappointment that there is no possibility of the parties resuming their relationship together. I am not in a position to positively resolve this issue at this stage. However, given the obvious emotions released by these proceedings, nor can I positively rule it out.
Accordingly, on the basis of the evidence available to me, particularly Dr C’s report and the fact that the mother continues in the paid workforce, I do not consider that the mother’s psychiatric health poses an unacceptable risk to [X]’s ongoing wellbeing, if the child returns to the mother’s predominant care.

b) Additional considerations

I will not make reference to each of the additional considerations additionally, but will refer to the ones which I consider to be relevant in the present case. In my view, the evidence indicates that [X] as a significant level of relationship with each of her parents and with Mrs G. I do not have sufficient information to accurately rank those relationships.
In common with many families, particularly those in which both parents work, the parties in this case have relied on a family member, in the form of Mrs G, to provide extensive care for [X]. Ms Dixon accepts that Mrs G is an important person in [X]’s life. In my view, it is important that this relationship be continued for [X] notwithstanding the rift, which has opened up between Ms Dixon and Mrs G, who have previously enjoyed a close relationship.
For reasons already provided, it seems to me to be more likely than not, that Ms Dixon has provided more of [X]’s care, up to this stage. It is suggested by Mr Dixon that, because of Ms Dixon’s illness, during 2010 and 2011, [X] may have come to regard Mrs G as her main carer. At this juncture, from my perspective, such an assertion can only be conjectural.

It is a significant plank of Mr Dixon’s case that [X] does not currently know Mrs S well and this should disqualify Ms Dixon from providing [X]’s predominant place of residence because of her (the mother’s) acknowledged need to rely on Mrs S to provide care for [X], whilst she is at work.
At this stage, the evidence is far from complete regarding the nature of the relationship between Ms Dixon and Mrs S. Given the contents of Dr C’s report, it would be naïve for me to think that it is a relationship that is without issues. However, the fact remains that, in a crisis, Mrs S has volunteered her services to her daughter and this assistance has been accepted.
The evidence currently available to me does not delineate with any clarity what is the precise nature of the relationship between [X] and her maternal grandmother. I accept, at this juncture, that relationship is not as significant as [X]’s relationship with her paternal grandmother. The relationship does, however, have the potential to be significant for [X], as she matures.
In contemporary Australian society, it is a common phenomenon for working parents to entrust their children, even when very young, to the care of professional carers, with whom the children have little relationship. I acknowledge that in such settings children are able to interact with other children of their own age and the carers concerned very often have particular qualifications and expertise in caring for children. However, in this particular case, I do not consider that the lack of an extensive relationship between [X] and Mrs S necessarily disqualifies Mrs S from providing care for [X], whilst Ms Dixon is at work, and so as a consequence Mr Dixon’s position should be preferred.
The father would portray himself as a person who is willing to encourage and support [X] having a relationship with her mother. Ms Dixon would have it otherwise, categorising the father as a controlling person, who wishes to restrict her relationship with [X], by the unnecessary imposition of supervision in the post-Christmas period. Apart from noting that the parties obviously have a highly conflicted relationship at present, I am unable to make specific findings in regards to this specific issue.
The father portrays his home and the current parenting arrangements for [X] as being ones in which she is comfortable and secure. Similarly, the mother asserts that [X] was well settled in her care, until 28 December, when Mr Dixon unilaterally changed arrangements on what she would consider to be spurious grounds.
Ordinarily, children should not be subjected to radical changes in respect of their care arrangements. For obvious reasons, children do better when their care is structured and subject to routine. Accordingly, they should not be subject to arbitrary change or unnecessarily separated from a parent or person who is significant to their care. It does seem to be the case that Mr Dixon did unilaterally change [X]’s care arrangements. What has been the emotional consequences of this change for [X], if any, is unclear to me.
Both parties have criticisms of the capacity of the other to adequately parent [X]. In the father’s case, it is asserted that Ms Dixon entered into an imprudent relationship and has neglected matters of cleanliness in her home. It is also asserted that [X] was presented suffering from severe mosquito bites.
The mother’s case is that Mr Dixon has little expertise in parenting a child of [X]’s age. In these circumstances, she asserts that [X] has been primarily cared for her by Mrs G. Although she has no criticisms of Mrs G’s capacity to care for [X], it is implicit in her position that it is preferable that [X] be predominantly parented by a parent, rather than a grandparent, no matter how loving and capable that grandparent is.
Necessarily, given the nature of the first primary consideration and the contents of the objects and principles underlying Part VII of the Family Law Act, generally speaking, relations between a child and a parent are given primacy over those between a child and a grandparent. In this case, the father consented to [X] remaining in her mother’s care following the parties’ separation.
This involved [X] and the mother living in separate accommodation. At this point, I am not able to assess the truth or otherwise of Mr Dixon’s criticism of the mother’s parenting, but, in my view, those concerns, as yet unproven, are not of such moment to disqualify the mother from providing the predominant place of residence for [X].
As previously indicated, at this point of the proceedings, neither party seeks to rely specifically on issues relating to family violence, although these issues colour each of their respective affidavit material. There are currently no family violence orders in place.

Conclusions

For all these reasons, I have come to the conclusion, at this interim stage, [X]’s interests will be best served if she lives predominantly in the care of her mother. However, I also accept that given the benefits she will derive from having a meaningful relationship with her father, she also needs to spend regular periods of time in the care of her father.
At this stage, one of the most significant factors in the case is [X]’s age. She is not yet two years of age. Accordingly, it is neither likely to be in her best interests nor reasonably practicable, for her to live with her parents in an equal time regime. Such an outcome may appeal to the parties’ individual sense of what is fair but it would not be fair to [X], who has a need to live in a secure and predictable routine.
At this juncture, given the heat of the current proceedings and the parties’ mutual suspicion for one another, in my view, it is not practicable for the presumption of equal shared parental responsibility to be applied to the parties parenting of [X].
Both parties work full-time. Accordingly, weekends are precious to them, particularly as this is when they are likely to be able to have quality time with [X]. She has a swimming lesson on Sunday, which Mr Dixon seems to have organised.
In these circumstances, I propose that [X] spend time with her father each weekend from 5:00pm on Saturday until 5:00pm on the following Sunday. In addition, it is appropriate that the father spend a further twenty-four hour period with [X] during the week. I appreciate that he may have to work. It would also be counter productive if such a period coincides with the mother’s day off, which is Wednesday.
In these circumstances, I propose that the father spend a further twenty-four hour period with [X], at times to be agreed between the parties, but failing agreement, to be from 5:00pm Wednesday until 5:00pm the following Thursday.
During these periods, [X] will be able to interact with Mrs G. I am satisfied that such a regime, in the medium term, will be sufficient to enable [X] to maintain and extend her relationship with both her father and paternal grandmother.
Ms Dixon has also commenced proceedings for the settlement of matrimonial property. Mr Dixon has not as yet responded to this application. In these circumstances, I will make the necessary procedural orders to advance the property application and refer the parties to a financial mediation conference.
At this point, I do not think that it would be appropriate to appoint an independent children’s lawyer for [X], given her tender years. In my view, it would be more useful if the court was provided with an independent assessment of [X]’s needs and stage of development, as well as the ongoing dynamics of the family. However, at this stage, I do not propose to direct that such a report be prepared until such time as it is clear that the matter will go on to final hearing. Accordingly, this is an issue which can be revisited on the next occasion.
At this stage, it seems more useful to refer the parties to a child dispute resolution conference, which I hope will assist them in resolving the complicated issues currently between them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 10 February 2012