Bianchi and Bianchi - [2009] FMCAfam 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIANCHI & BIANCHI

[2009] FMCAfam 566

FAMILY LAW – Interim arrangements for care of children aged 2 years and 5 months and 9 months respectively – arrangements to remain in place until preparation of family assessment – nature of interim hearing – presumption of equal shared parental responsibility – best interests of children – should children spend substantial and significant time with father – age of children – reasonable practicality – overnight time for younger child – section 60CC factors.

Family Law Act 1975, ss.60CC, 65DAA

Applicant:

MS BIANCHI

Respondent:

MR BIANCHI

File number:

ADC 1506 of 2009

Judgment of:

Brown FM

Hearing date:

20 May 2009

Date of last submission:

20 May 2009

Delivered at:

Adelaide

Delivered on:

20 May 2009

REPRESENTATION

Counsel for the Applicant:

Ms T.C. Lewis

Solicitors for the Applicant:

Howe Martin and Associates

Counsel for the Respondent:

Mr J.G. McGinn

Solicitors for the Respondent:

Robinson and Mason

ORDERS

The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by a psychologist or counsellor to be agreed between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time.
The costs of such assessment and the report arising from such assessment to be borne equally by the parties.
Further consideration of the matter is adjourned to 4 September 2009 at 9:30am in anticipation that the family assessment will be available.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The parties have equal shared parental responsibility for the children of the marriage [X] born in 2006 and [Y] born in 2008.
The said children live with the mother.
The father spend time with the child [X] as follows:
(a)In the first week of each fortnight commencing 22 May 2009 and each fortnight thereafter from 5:00pm Friday until 5:00pm Sunday; and
(b)In the second week of each fortnight commencing 31 May 2009 from 5:00pm Sunday until 5:00pm Monday.
The father spend time with the child [Y] as follows:
(a)In the first week of each fortnight commencing 23 May 2009 and each fortnight thereafter on each Saturday from 10:00am until 5:00pm; and
(b)In the second week of each fortnight commencing 1 June 2009 on each Monday from 10:00am until 5:00pm.
In order to give effect to orders 6 and 7 the mother is to deliver the children to the father’s home at the specified time and the father is to return the children to the mother’s home at the conclusion of each such period of time.
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 21 August 2009 at 11:30am in the hope they can discuss the contents of the Family Assessment with the counsellor concerned, to discuss the care, welfare and development of the children [X] born in 2006 and [Y] born in 2008 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.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 1506 of 2009

MS BIANCHI

Applicant

And

MR BIANCHI

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. The reasons have been transcribed at the request of the father. The manner in which the reasons have been punctuated and placed into paragraphs is not of my selection.
In addition, due to the extempore nature of the judgment, there are grammatical errors and infelicities of expression. They have not been corrected. I apologise for the errors.
I made an error in the expression of the relevant orders, which related to the specific dates on which the father’s time with the children should commence. This error was corrected in the issued orders pursuant to the provisions of Order 16 Rule 5 of the Federal Magistrates’ Court Rules.
The corrected order appears at the commencement of these reasons for judgment.
This afternoon, I have to deal with the matter of Bianchi which is an interim application concerning the care arrangements for two children: [X], who was born in 2006, and [Y], who was born in 2008.
The parties to the proceedings are Ms Bianchi, who is [X] and [Y]'s mother, and Mr Bianchi, who is the father of the two children concerned.
These are interim proceedings, and I will tell you what that means. Today is what is called my duty list. It is the day when all the matters come into court for the first time. There are all sorts of different matters; some are about property, some are about children, some are about child support and some are about old cases that happened some time ago and issues arise about the enforcement of the orders. But everyone comes in today and they get allocated off to other days, and decisions are made about what happens in the meantime.
That is the category in which your case falls today. I am not deciding today what are the long-term arrangements for the two children concerned; I am doing the best I can to manage the case in the short term. I sit up here and I hear the submissions from each of your lawyers and I read what you have said in your affidavit material. I have not seen either of you say anything directly; I just look at you. I have not seen either of you in the witness box being cross‑examined about things that have happened in the past between you which may be relevant.
Mr Bianchi is a [occupation omitted] and no doubt he has experience at giving evidence in court and he knows about cross-examination. There has been no cross-examination at this stage. There may be at some stage in the future, if there has to be a final hearing of the matter, but today time is short, so I have only read the affidavit material and where there is a dispute between the affidavits I cannot resolve it today just by reading the affidavits.
That dispute resolution process will be for another day, and, as

Mr Bianchi knows, how courts make decisions about issues of fact in the court context is that judges and magistrates see a witness being cross‑examined and decide whether they believe a witness or they do not. That is often grossly simplistic in a case like this one because it is a common phenomenon that individuals, particularly individuals who are in a marriage, can look at the same incident and have a very different view as to what happened and still be an honest person.
My impression at this stage is that you are both honest and good people. I have absolutely not a skerrick of doubt in my mind that you love these two children very much indeed. I do not think you would be here if you did not love the two children concerned. However, for all sorts of reasons, I suspect to do with your relation and also the difficult circumstances that came about when you separated, you now have radically different views as to what is likely to be the best arrangement for the care of these two children who are very young indeed.
The cases that I find most difficult to deal with are cases where children are little; and they (the children) are obviously vulnerable because of their age and it is difficult for them to be heard, if you like, and their parents, particularly in situations of conflict, have, as I say, very different views about what is likely to be best for a child. The two of you, I think, have different value systems and different views about how to lead your lives. I think Mr Bianchi alluded to your different views about household matters and where things went, and tidiness and so on and so forth. It is not my role to say one particular way of conducting a household is better than another, and, to be frank, I really could not care very much.
There is an artificiality in the job I have to do. If you think about it for a moment you will realise how artificial is the decision I have to make because at this stage I have never met either [X] or [Y] and I probably never will - it is very unlikely that I will - but I am being asked to make all these decisions.
The sad thing about this case is that the experts on [X] and [Y] are you two because you have met [X] and [Y], you know [X] and [Y], you love [X] and [Y], everything that [X] and [Y] do - and I say this with respect - is of endless fascination to both of you because that is what parents are like.
Of course they find their children endlessly fascinating, and so it should be, but today I do not know how many children I have been dealing with and I do not know how many children I deal with in my professional life. I have about four or five hundred files that I have to deal with that are at various stages of completion and there are umpteen children in those files and I am making all these decisions about these children because the parents concerned cannot make the decisions themselves.
That is sad but it is an inevitable by‑product of conflict and people having different views about their child or children and them not being able to compromise. It is an inevitable by‑product of that. My function - and I will be quite frank about it - is to resolve those disputes because if there was not a mechanism for resolving those disputes the strong would take advantage of the weak and that would not be a good thing.
So there has to be a role for the rule of law, and again Mr Bianchi would know about that in his role as [occupation omitted] that sometimes [occupation omitted] have to step in and say, "It will be like this." And that is my job. I am very much like Captain Picard or Captain Kirk on the deck of the Starship Enterprise and I just say, "Let it be so," and the two of you have to live with the consequence of me saying, "Let it be so." And that is what I am doing. Effectively, in a moment, I will be saying, "Let it be so for [X] and [Y]" and that will perhaps make one of you quite angry and upset and that is not my intention, but I have to make a decision and I make a decision where all of the pieces of the jigsaw puzzle are not to hand.
I am making the decision for the next three or four months or so because you have, quite sensibly in my mind, agreed to get a report by a psychologist who will have a significant level of expertise about the developmental needs of children in general but will also have the opportunity to see these two children, see what they are like, see how they are going, see if at this early stage they are being adversely affected by conflict because children do not like conflict and if they are exposed to conflict they may internalise it - even quite young children - and react adversely to it and that cannot be a good thing.
I do not have that report today but I will have it in a few months' time. I still have to make a decision because although I think it would be preferable that you could make a decision about arrangements for the care of your two children you are not able to do that this afternoon.
I say these things because the law in the Family Law Act tells me that I am obliged to conduct these proceedings in as less adversarial a way as possible and I am meant to be doing it in a way that is child focussed. So I am putting the cards on the table, as it were, and saying I do not think I am the best person to make this decision about [X] and [Y] because I do it in this artificial environment of a formal court. Secondly, I am also required to conduct the case in a way that ensures that you have, as much as possible, an ability to have a cooperative parenting relationship with one another.
I say this to focus not on here and now - and obviously people concentrate on next weekend and the weekend after that and they do not think about what life is going to be like in two or three years' time, when [X] is five or six and [Y] is three or four, or even when the children are nine and 12, and so on and so forth, because they want to know what is happening now. With respect, you are each, I suspect, jockeying for advantage over one another and the politics of your relationship separation are probably a factor in what is happening but again I cannot know for certain.
How do I make the decision today? Well, I have to apply some principles of law. Whatever I do I have to be satisfied that the orders I make are more likely than not to be in the best interests of the two children concerned. That is the fundamental principle: whatever I do I have to be satisfied that the orders are in the best interests of the two children concerned. I also have to bear in mind the overall structure of Part VII of the Family Law Act which is the part of the act which deals with children. It has been changed; it was changed two or three years ago.
Before I make any parenting order I have to consider a presumption. I have to presume that it is likely to be in the best interests of the child or children that his or her parents have what is called equal shared parental responsibility for their child or children. The reason for that is that the legislation encourages both parents to be fully involved in decision‑making about their child or children, both in terms of issues to do with their child and also the time each parent spends with their children.
If the presumption applies, I am required to think of the child or children concerned spending either equal periods of time with both parents or substantial and significant time with both parents. The presumption is rebutted by considerations of family violence or neglect or abuse or that it just simply would not be in the child or children's best interests.
But that is not the end of the matter. I have to also look at issues of reasonable practicality because there are some parents that cannot have equal time or substantial and significant time because it will have detrimental consequences for their child or children.
In determining what is likely to be in a child's best interests I have to look at a long list of matters in section 60CC. I have to bear in mind that children need to be protected from family violence and abuse and neglect, and I also have to look at how they can have a meaningful relationship with both of their parents. Very often there is a tension between those two considerations, which are given some more importance. I then have to also look at a long list of other matters, additional matters, which are in section 60CC of the Family Law Act.
There is no principle that one size fits every family because that would be silly - that there is a template for every family - because the needs of every child are different and the relationships between the parents concerned are different and the practical considerations are different. So there is not a template that you apply.
By way of background, you married I think in May of 2003. You finally separated on 11 July 2008, when Ms Bianchi left the family home. Obviously at that stage she was in an advanced state of pregnancy with [Y], so as far as he is concerned there is no history of the parties managing his care when they were in a marital relationship with one another.
It seems to be the position that prior to July 2008 there were some difficulties in the parties' marriage with one another, and I think it is

Mr Bianchi's position that the parties were separated under the one roof for a period of time. Mr Bianchi is a [omitted] by occupation. In the past he has been required to work shiftwork, as [occupation omitted] often are, but as I understand matters he is now working in a more administrative role. It seems to be common ground between the parties that at least while they were living in a marriage that it was Ms Bianchi who was going to be the main provider of care for the children and

Mr Bianchi was to be the family's breadwinner, and that is a common way that people share their responsibilities and no-one is to be criticised for that.
The separation between the parties was difficult, as it invariably is, and each party is critical of the other for how he or she behaved, but it is not, I think, a strong element of this case that there are issues that are raised of significant family violence and certainly there is no suggestion that either party has felt the need to obtain a formal order from a Magistrates Court regarding restraining the other from coming near to him or her.
There has been a number of unpleasant incidents between the parties. My impression is that they are incidents that have occurred in response to the anxiety and difficulty of the parties' separation and I suspect that each party is still coming to terms with the new emotional topography between them, now that they are separated and remain the parents of two young children.
It is also the case that the mother feels that the father has been domineering of her and has asserted what he believes to be the appropriate regime for the care of the two children on her. From the father's point of view he feels equally frustrated and thinks that the mother has said to him: "This is what you're going to get as far as spending time with the two children is concerned." So at this stage my impression is that both parties feel somewhat hard done by.
It is I think common ground that since the parties separated, apart from the period immediately following [Y]'s birth and a period of time when Ms Bianchi's father was terminally ill, it has been the mother who has provided more of the care of the two children concerned. It has also been the situation that Mr Bianchi has been able to spend periods of time with [X], particularly on weekends, which has included overnight time with [X].
The mother's position is that she would like to also have some weekend time with [X], so she and [X] and [Y] can spend some time with her family and friends and they can get to know the two children concerned.
The father's position is that he has always been an involved and committed parent, although he has worked. Prior to the parties' separation, it is his position that when [X] was little he got up to attend to [X] at night-time, and was a fully-involved and loving and caring parent. It is his position that he is a competent parent and at this stage he wants to be as fully involved in caring for both children as he possibly can be, and that is really the controversy at this stage.
The father's position is that, given what he sees is his significant level of involvement in the past, there is no impediment to him being able to spend five nights per fortnight in various combinations of time, certainly with [X] but also with [Y].
It is the mother's position that [X] has been unsettled by the regime, particularly being separated from her, her principal provider of care. The mother urges a cautious approach in respect of both children and she is particularly concerned at the prospect of [Y], who is not of course yet one year of age, being away from her for periods overnight.
The father's position is that he is able to care adequately for both children and, as I say, he wishes to spend time with both children on alternate weeks as follows: from 4 pm on Monday afternoon until 8.30 the following Tuesday morning, and from 5 pm Friday to 5 pm the following Sunday in the first week, and in the other week from 5 pm on Wednesday to 5 pm on the following Friday.
The mother's position is that there should be an alternate weekend arrangement for [X] from 5 pm Friday until 5 pm the following Sunday in one weekend and in the other week from 5 pm Sunday until 5 pm the following Monday, and she proposes that as far as [Y] is concerned there should be periods of daytime spent between the father and [Y] to coincide with the time the father is spending with [X].

So the parties are very far apart. The father has corresponded with

Dr S, who is a doctor; I am told he has some expertise in sleep irregularities for children. Both parties allude to there being some sleep disturbances that the children have had in the past. Anyway, Dr S has written a letter to Mr Bianchi and he did that at the end of March, after he got an email from Mr Bianchi.
Dr S I think was initially cautious about a child of [Y]'s age being away from a parent who could be described as a primary carer prior to turning one year of age. He was, however, after some persuasion, prepared to concede that he would be comfortable with [Y] spending time with his father, to include a full night's sleep, once a week from as early as nine months of age.
His conclusion was hedged with some provisos which included the following: That Mr Bianchi recognised the mother's need to remain - and this is the word he used - the dominant care provider to the young children; that he gave an undertaking or provided comfort that he was not seeking to remove the children from the mother's care; that

Mr Bianchi had a complex understanding of the needs of the children of this age and also that he was willing to conciliate and negotiate rather than acting unilaterally.
The impression I have is that Mr Bianchi persuaded Dr S that he was a committed parent, and I have no doubt that he is a committed parent, but that he was also sensitive to Ms Bianchi's needs and concerns. On that basis Dr S was prepared to make the recommendation that he did.
In my view I have to be somewhat cautious about what Dr S has said because of those provisos, because the impression I get from Dr S's report is that ordinarily he would not be in favour of overnight time for a child of [Y]'s age but in certain circumstances he would think it was a good idea if the parties themselves had an exceptional relationship, an empathetic relationship and a trusting relationship with one another.
Mr Bianchi is shaking his head. Well, I have read the report and I suppose I must take it as I read it at this stage. I think to a certain extent it is axiomatic or self-explanatory that the parties do not have a fully trusting relationship with one another and do not communicate well, because they come into court and say to me, "Make a decision about our children."
In this case I think the presumption of equal shared parental responsibility is not rebutted. I think the parties should have equal shared parental responsibility for their children, but I have to consider the best interests of the children concerned and I have to consider considerations of reasonable practicality in terms of equal time. I think any consideration of issues and practicality and the best interests of the children rebut an equal time arrangement. This is about substantial and significant time for these two children and I think five nights a fortnight is substantial and significant time.
In terms of the matters that I have to consider in terms of the children's best interests, I have to look at the ages of the children concerned. In this case I think [Y]'s age and [X]'s age are significant considerations. I have to look at the consequences of moving too quickly in terms of both children's ages and what implications that may have for the two children concerned, and I am concerned that there may be implications if both children are rapidly progressed, given their tender years, into a substantial and significant care arrangement, particularly at this stage, where I have not had an opportunity to have an exhaustive inquiry into the children's best interests and I do not have the family assessment report.
In terms of the practicalities of the situation, I have to consider the matters that are set out in section 65DAA(5). I have to look at how far apart the parents live and I do not think they live a particularly long distance away. I have to look at the parties' current and future capacity to implement an arrangement for the two children to live in a substantial and significant time arrangement. I have to look at how well the parties communicate with one another and at this early stage I do not think the parties have the sort of empathetic and cooperative and trusting relationship that Dr S I think was alluding to in his fairly brief letter. I also have to consider the potential effects on [X] and [Y] because today I am not thinking about the parents' rights and what they want, I have to think of what is likely to be best for the two children concerned in a not particularly long time frame.
At this stage I am not persuaded that the regime that Mr Bianchi advocates is either likely to be in the best interests of the two children concerned or one that can be reasonably and practically put into effect. I just do not think it is going to work.
The dynamic of these cases is very often similar, particularly where young children are concerned. The father - and it is invariably a father - thinks that the mother is being too protective, too cautious in respect of the child or children concerned and wants the mechanisms to be calibrated at a fairly fast pace. The other parent - invariably the mother - urges caution and urges a slow regime.
Both parties very often say that the other has an ulterior motive which is unrelated to the best interests of the child or children concerned. I think it will always be this way: the father saying it is too slow, the process is too weighted in favour of the mother, and the mother will invariably say that things are moving too quickly.
Anyway, I have to balance these competing considerations and come up with the arrangement that I think is likely to be best for these two children. I am not in the business of placating the parents concerned or reaching some compromise to divide the time.
I have come to the view that the regime advocated by Ms Bianchi will ensure, in the short term, that the children have a meaningful relationship with both of their parents. I think at this stage the focus of [Y]'s life in particular is his mother and I think I have to bear in mind the significance of that relationship to this young child. I think to a certain extent [Y]'s needs impact upon [X]'s needs, although she is still a young child. I suspect many paediatricians and many child psychologists will have all sorts of different views about what is appropriate.
These matters are inevitably hedged and surrounded by controversy, but at this stage I think it is clear that the mother, Ms Bianchi, has provided more of the care of these two children and that I should be respectful of her role. I think at this stage there are likely to be all sorts of difficulties if I advance arrangements for [Y], particularly in terms of overnight time, given that there will be an opportunity to revisit the matter in a fairly short period of time.
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 fifty-five (55) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 20 May 2009