JONES & JULIET

[2015] FCCA 1953

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES & JULIET [2015] FCCA 1953

Catchwords:
FAMILY LAW – Parenting proceedings – long history of litigation – children’s views – entrenched parental conflict – contrasting parenting styles.

Legislation:  
Family Law Act 1975 (Cth)

Applicant: MS JONES

Respondent: MR JULIET

File Number: HBC 730 of 2007

Judgment of: Judge McGuire

Hearing dates: 13 & 14 July 2015

Date of Last Submission: 14 July 2015

Delivered at: Hobart

Delivered on: 14 July 2015

REPRESENTATION

Counsel for the Applicant: Ms J White

Counsel for the Respondent: Mr Munro

Solicitors for the Respondent: John Munro & Associates

ORDERS

1. The parents have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2004 (“the children”).

2. The children live with the father on a fortnightly regime during school term from Thursday of week one after school until the commencement of school on Tuesday in week two.

3. The children otherwise live with the mother at all other times on the fortnightly regime during school terms.

4. The children live between their parents on school holidays as follows:

   (a)For the entirety of the first term school holidays in 2016 and in each alternate year thereafter with the mother, and for the entirety of the first term school holidays in 2017 and in each alternate year thereafter with the father.

   (b)For the entirety of the second term school holidays in 2016 and in each alternate year thereafter with the father, and for the entirety of the second term school holidays in 2017 and in each alternate year thereafter with the mother; and

   (c)For one half of the third term school holidays with each of the parents as agreed between the parents and failing agreement in 2016 and in each alternate year thereafter with the mother for the first half of the holidays and with the father for the second half of the holidays – with the changeovers for the purposes of school holidays occurring at 12 noon on the second Saturday of the holidays (noting an extant order specific to the third term holidays in 2015 being order 5 of the orders of 20 March 2015).

5. The orders of Benjamin J made 30 June 2010 continue in full force and effect in respect of the summer school holidays and the special days the children spend with the parties.

6. In all other respect the orders of Benjamin J made 30 June 2010 remain in full force and effect unless agreed otherwise by the parties in writing (which includes texts and emails).

7. The mother’s application for costs be noted and reserved.

8. The applications for each of the parties in respect of child support matters – being the mother’s application for lump-sum child support and the father’s application for a departure order and the mother’s application for enforcement of arrears be adjourned for hearing in Hobart on Thursday, 8 October 2015 at 10.00 am (with an estimated hearing time of one day).

AND THE COURT NOTES THAT:

A.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT HOBART

HBC 730 of 2007

MS JONES

Applicant

And

MR JULIET

Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. This application involves Y born (omitted) 2004, 11 years old and X born (omitted) 2002, 13 years old, being the two children of the parties.

2. This matter has a lengthy and sad history of litigation. There has been regular litigation between Mr Juliet and Ms Jones involving these two children over the past 11 years. Even a cursory reading of the family report and the report of the family therapist should give any reasonable person an understanding of the ordeal that these young children have encountered.

3. The father now seeks to fundamentally change the children’s living arrangements whereby they live primarily with him. Mr Juliet is however, the respondent in the proceedings given that this issue was raised only on his response to the mother’s initiating application for lump-sum child support. The children’s living arrangement obviously became relevant to the child support issues and hence these reasons address only the parenting matters. To further complicate matters, Mr Juliet has now filed a further application seeking orders departing from child support assessment.

4. There have previously been a number of orders in respect of X and Y, the most recent substantive orders being those made by Justice Benjamin in 2010 which, in broad terms, provided that the children live primarily with the mother and spend five nights a fortnight with the father being a block of five nights in the form of an extra-long weekend.  His Honour’s orders were also comprehensive in respect of specific issues, including but not limited to, special days for the children between the parents and school holidays.  Again, the pity is that having endured some five or six days of trial before his Honour in 2010 and armed with his Honour’s comprehensive orders and reasons these children, who are now young teenagers, should find their parents back in Court.

5. There are five major issues that come before me now:

   (1)The capacity of each of the parents to attend to the children’s physical, intellectual and emotional needs;

   (2)An investigation into the children’s views as to their parenting and living arrangements and the weight to be afforded those views;

   (3)An issue as to the distribution of school holiday time; 

   (4)A number of specific issues raised within those broad categories firstly by the father being;

   (a)The mother’s punctuality in respect of the children arriving at their schools; 

   (b)The mother’s alleged general disorganised state of her home that she provides for the children;

   (c)The mother’s capacity to act unilaterally in changing Court orders in respect of school holidays; and

   (d)The mother’s capacity to attend to the children’s intellectual needs by assisting with their homework.

   (5)The mother also raises some specific issues and some can be inferred from the material and her evidence.  Whilst there was some attempt in this matter to revisit issues of family violence, which resulted in a conviction in respect of Mr Juliet for a common assault on the mother in or about 2004 followed by an unsuccessful appeal by Mr Juliet to the Supreme Court of Tasmania, I was perhaps vigorously hesitant to revisit the particulars of that incident although the mother on her evidence claims to be still affected in her relationship with Mr Juliet following those events and that there is a nexus and an impact on the ability of these parents to communicatively and cooperatively parent their children.  The inference from the mother’s evidence is that there is a power imbalance in the relationship and that she, at least subjectively, has the view that she suffers control by Mr Juliet on her and her parenting of the children.

6. Both parties provided affidavit material and were cross-examined extensively by Counsel for the other party. When the trial commenced Mr Juliet was representing himself but when the matter came on for the second day of evidence he was represented by Ms White of Counsel who, in my view, has acted admirably in picking up a trial part way through its evidence with the benefit only, I assume, of a transcript. The Court is grateful for the assistance given to Mr Juliet and to the Court generally by the appearance of Ms White.  The mother has been represented at all times by Mr Munro of Counsel.

7. Neither party adduced any further evidence although I have read into evidence a report dated 9 July 2015 from a psychologist, Ms M, prepared subsequent to my order after the first day of evidence and for a process commonly referred to as “family therapy”.  Counsel for the father indicated yesterday evening that she intended to call Ms M to give evidence and to adopt her report.  It eventuated that Ms M was unavailable and on holidays at some unknown location.  Given those difficulties, the report was read into evidence but without being tested by cross-examination. 

8. Similarly, I have the benefit of what I see as of a very insightful forensic exercise in the form of a family report prepared by family consultant Ms D dated February of this year and following interviews with each of the parties, the children and the father’s partner.  The contents of that document are read into evidence without either of the parties requiring the author for cross-examination. 

9. The father’s proposal is that the children will spend all of their school time with him but spend their weekend time and the greatest majority of their holiday time with the mother.  The mother’s position is, prima facie, in the same terms as the orders made by Justice Benjamin being for the children living primarily with the mother and spending a block period on a fortnightly cycle of five days and nights with the father encompassing a weekend.

10. Both parties currently live in the (omitted) area outside of Hobart.  The children attend the (omitted) School.  The financial positions of each of the parties is tenuous, although each of their evidence in that respect was in many ways unsatisfactory and I am mindful of the fact that there are collateral child support proceedings between the parties and to give them the benefit of the doubt, I expect that their evidence in relation to financial matters in this trial is perhaps influenced by those proceedings remaining pending.

Relevant law.

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that I am to have the children’s best interests as my paramount consideration. In determining those best interests I am to reference the probative evidence and the parties’ proposals to the mandatory considerations set out under section 60CC(2) and subsection (3) of the Act.

2. Section 61DA of the Act offers a presumption of equal shared parental responsibility in parents for their children being, in practical terms, the decision making in respect of the longer term and important aspects of the children’s lives. What flows from that presumption, if not rebutted, is a consideration of whether the children should spend equal time between their parents. However, if the Court is not of the view on the evidence that it is in the children’s best interests and reasonably practicable for such a regime to occur then the Court turns its attention to whether the children’s best interests are served by and whether it is reasonably practicable to have a regime of substantial and significant time for the children between the parents under the definition of that phrase in the Act.

3. However, the presumption at law of the parents exercising the obligations of equal shared parental responsibility does not, in my view, apply in this matter given that there is clear evidence of family violence, most obviously evidenced by the fact of a conviction for common assault in the father.  Nevertheless, it is still open for me to find that it is in the children’s best interests for their parents to exercise equal shared parental responsibility and, if I do so, then the same statutory and intellectual course of consideration remains open to me in respect of their living arrangements.

4. The process of family therapy was urged upon me after the first day of evidence by Counsel for the mother and with the consent of Mr Juliet. I have gleaned some assistance from the report, untested as it is, but frankly there is little in that document which was not obvious to me from the affidavit material of the parties, my observations and hearing them give their evidence during the three days of this trial.

5. The children attended the family therapist and that process served to corroborate the difficulties that these two young children have endured by reason of the continuing conflict and litigation between their parents.  Having said that, it is equally clear that, perhaps unlike their parents, these two children have exhibited a high degree of maturity, resilience and an ability to establish and maintain a meaningful, successful, beneficial and enjoyable relationship with each of their mother and their father.  This speaks volumes as to firstly, the resilience and capacity of these two young children but also vicariously, although almost illogically, is a credit to each of the parents who have been able to raise two such admirable, successful young adolescents.  The quandary is that they seem unable to reconcile their own personal relationship difficulties which continue to impact to a high degree on their children.

The Evidence.

1. The family report, as I have said, is in my view a very helpful exercise in forensic investigation.  It is insightful as to the family dynamics although again fairly obvious to me from the evidence and my viewing of the parties in Court.  It is intrusive in its investigation and, in my view, it is a pity that the parents being armed with that report, together with the family therapist report, and where rather grand statements were made early in the trial as to eliciting the views of these children, that this trial should proceed to its logical conclusion of a judgment.

2. In its recommendations the family report suggests a continuation of the status quo with the children living primarily with the mother but spending substantial and significant time with the father.  The report explores and sets out the children’s views unambiguously and unequivocally. 

3. It behoves me in these reasons to comment on the credit of each of the parties in respect of their evidence. In my view, Mr Juliet’s evidence is perhaps reflective of his personality. It was assertive and, as I have said, even armed with the family report and the family therapist report, he proceeded to prosecute his case to its logical conclusion, which indeed is his entitlement.  He strikes me as an intelligent and articulate man but one capable of being selective and at times disingenuous in his evidence to the stage, in a prima facie sense, of even being misleading to the Court as to material facts and I refer particularly to his evidence as to his proposed sale of his home at (omitted) so as to accommodate the children in another venue and his evidence in his affidavit as to the historical assault conviction.  As I raised with Mr Juliet, in my view a reasonable reader of his affidavit might reach conclusions other than the historical facts.

4. There was a suggestion by Counsel for the respondent that Mr Juliet in his application was motivated by matters other than the children’s best interests being financial considerations and specifically his child support obligations.  Whilst there is an obvious coincidence in time in the bringing of his application only when confronted with the application for lump sum child support maintenance by the mother, I am not able to find any mala fides on the part of Mr Juliet in the bringing of his application, although quite obviously there remains a coincidence in time.  Having said that, and again as mentioned on occasions in interrupting the evidence of the parties, it is clear to me that the particulars of the complaints made by Mr Juliet in respect of the mother’s parenting of his children have some factual base and hence, some consideration of allocation of weight is required.

5. In my experience in practising and sitting in this jurisdiction it is rare to come across the so-called “perfect” parent. In fact, I do not think I have ever seen one. Such might be an ideal left for B-grade novels and television shows because it is easy to criticise the parenting skills of another but it is perhaps an art to be able to recognise and acknowledge the positive traits of another parent.  That was an element sadly lacking in the evidence of Mr Juliet.  In my view, as I have said, he prosecuted this case consistent with this personality. He is assertive. He undoubtedly loves his children. He is committed to his children’s education. However, he is regimented in his own personality and in his requirements for his children.  He says himself that he requires order and routine and certainty in his children’s lives and that in many ways be an indication of a good parent.

6. The mother’s evidence also reflected her personality and her parenting style.  She presented her evidence in a more laissez-faire and bohemian style than did the father.  She is clearly not regimented like Mr Juliet. She allows the children more freedom in her home.  She is less run by clocks and timetables and she parents accordingly.  This style brings some defects to both her parenting and to her evidence to this Court. She too was less than candid or precise in some of her evidence and, coincidentally, in respect of her proposed accommodation for the children.

7. I am required to reference the probative evidence and the parties’ proposals to the mandatory considerations under section 60CC of the Act. Firstly I am to make orders which benefit children having meaningful relationships with their parents. This is a primary consideration but it is not one that is determinative of the children’s parenting arrangements. It is an easy matter for me to find that X and Y have meaningful, successful and beneficial relationships with each of their parents. This is so despite the parents’ shortcomings, lack of insight and lack of prioritising their children. Again, these parents should be very proud that they have raised two young adolescents to be such successful and mature members of their communities. These children enjoy time with each of their parents. They are able to differentiate their parents’ personalities and parenting styles and to their credit these children are able to adapt and move between their parents’ very different households.

8. Indeed, these children seemingly benefit by a breadth of parenting styles and role models.  The significant point here is that despite these parents in many ways being at opposite ends of the spectrum of parenting styles, these children have maintained and flourish in their relationships with each of them.

9. At paragraph 24 of the family report, Ms D says:

   Ms Jones was observed to have an affectionate and warm relationship with X and Y.  She was patient and appropriate in her parenting, particularly when Y became a bit tired and more challenging at the very end of the day’s sessions.

10. At paragraph 37, in respect of Mr Juliet, appears a similar complimentary observation:

    When observed with the children, Mr Juliet and Ms R were attentive, good humoured and interacted warmly and in an intellectually stimulating way with the children.

11. At paragraph 43 of the report, Ms D observes and notes:

    The children seemed to accept that their parents have differences with each other and in their approaches to parenting.  They obviously love and have significant relationships with their mother and their father and the children appear to try to avoid conflict and to tolerate the problems that they may encounter in either home.

12. I am to consider any issues of family violence which impact on the children’s parenting and living arrangements.  As I have already referenced, there is a historical matter of a conviction of common assault in respect of Mr Juliet and against Ms Jones.  I note that previous findings have been made by other Courts including findings made by Justice Benjamin in the Family Court in his Honour’s reasons in 2010.  I was not inclined to re-enter the factual debate which led to those findings as I am of the view that the matter is of such historical nature that it does not impact on my reasons.  Nevertheless, my observations of the mother giving her evidence is of her continuing to be impacted by what she perceives and perhaps reasonably, being a power imbalance within her relationship with Mr Juliet and, from my reading of the evidence, also of her relationship with Ms R. 

1. The mother’s evidence also raises issues of denigration and inappropriate comment.  It is difficult for me to make findings as to whether or not that occurred or, at least, as to the extent raised by the mother.  In fact the allegations are perhaps, in a sense, mutual.  What I did observe at the risk of repeating myself, in respect of Mr Juliet is of an assertive, confident personality willing to follow matters of principle but resulting in, at times, over-exuberance in his behaviour concerning his children and perhaps a lack of the ability to stand back and consider the impact of his behaviour on his children. 

2. Similarly, I observed in the mother, despite my comments as to power imbalance, a certain quiet confidence and stoicism which tends to be isolating and create residual animosities between these two adults from their responsibilities in the care of their children.  In summary, it is unbecoming of each of these adults if they get involved in name-calling, inappropriate adjectives in conversations and denigration. The evidence in the family report and the family therapist’s report makes it abundantly clear that these children are aware of these downfalls in their parents’ personalities and their behaviours and it would behove these parents to acknowledge and address these issues as soon as possible. 

3. Mr Juliet, in his application and in his comments to the Court places great weight on the children’s views and preferences as to their living arrangements.  It was in fact, Mr Juliet who argued vigorously for the children’s views to be produced during a process of family therapy which I acceded to, albeit reluctantly, partway through this trial.  The result being that these children were reinterviewed and imposed with the burden, undoubtedly, of being asked what their preferences were in an environment where their parents were present. Whilst these are in many ways strong and resilient children, X, in particular, has personal sensitivities and he is perhaps not as able or strong in this regard as is his younger sister.  To my mind, that was in many ways an unfortunate situation but one urged by the parties and where the Court, of course, should be appraised of the children’s views.

4. In any event, I am satisfied from the material before me that these children have expressed a preference. There are some comments that indicate that these children are equivocal. However, on reading all of the material and within context of the family report in particular, I am satisfied that these children express a preference to remain living primarily with their mother and a continuation of the status quo.  That perhaps, should not necessarily be taken as any form of compliment to the mother.  Rather it is these children expressing a preference to do exactly what Mr Juliet professes that he wants. These children want consistency, routine and order in their lives and relationships. They do not express any desire for change. They are content in their relationships with their parents. They show discontent with the attitude of their parents. I am mindful of both parties giving evidence, unsatisfactory as it was, that they intend to sell their homes in (omitted) which apparently is a very desirable part of Hobart; where these children have lived historically with easy transit between each of their parents’ homes; where their peer group relationships have been established; and where they are comfortable in their homes. 

5. I cannot order the parents not to move. It is a matter for them. Strangely, in my view, without any indication from the children in the reports, both of them suggest that they might intend moving to Greater Hobart.  To my mind it does not show any great insight or objectivity on the part of either of them. I have commented on the unsatisfactory nature of this evidence from both parents.

6. In the February 2015 family report at paragraph [29] the family reporter notes this: 

   The father and his partner were strongly of the view that the children’s views should be heard and respected and were keen for the family mediation to occur that has now been ordered by the judge.  Mr Juliet stated that, until the children’s views were central, there was “no point”.  He said that he did not want the matter to proceed to trial.

7. At [48] the family consultant says this:

   X made a point of going to each parent to hug them after his interview, even though his parents were in separate rooms, as if to reassure them both of his feelings for them and that neither was favoured.

8. I can only wonder as to the continued pressure on the young shoulders of the now 13-year-old X being regularly brought into an interview situation with a social scientist and with the expectations of at least one but perhaps both of his parents on those young shoulders.  I say that only by comment.

9. At [49] the family reporter also provides:

   Y reported that both her parents are supportive of what she wants to do.

10. It is clear from that statement and from various other statements, particularly to and by the family therapist, that these children have been made well aware that they are attending these interviews with an expectation that they express their views.  To my mind, that brings into question the insight of the parents who, I respectfully suggest, might rather be quarantining their children from the difficult processes that we endure in this Court rather than involving them in it. 

11. Paragraph [49] continues:

    Y reported that both her parents are supportive of what she wants to do and she mentioned her enjoyment in participating in eisteddfods.  Y described various activities that she enjoyed when in either parent’s home.  Y did not disclose which parent she felt closer to and it seemed that she had no wish to choose between them.  She thought that X is sometimes closer to one or sometimes the other parent.  She expressed an enjoyment in X’s company in either home. 

12. It is often said that siblings form closely bonded relationships with each other when enduring the trials and tribulations of their parents’ separation. In this case it is understood that the separation took place in 2004 that being 11 years ago. Some might think it unusual that a 13-year-old boy and an 11-year-old sister have such a closely bonded relationship? In my view, it is to their mutual benefit that they do. 

13. At [50] the family reporter observes:

    Y considered that the current arrangements were working “okay”, although she added that she thought the time should be equal, a week in each home.  When asked if she had spoken to her father about this, Y volunteered that, “Dad was really the one who put the idea into my head,” and she thought this suggestion by her father had occurred about the beginning last year.   

14. If that is correct the father shows a lack of insight into the effects of active involvement of the children in a decision-making process which is properly that of parents and, if the parents cannot do it, then the delegated function of a Court such as this.  To put it bluntly, this is not the stuff for young children. They need not be the authors of their own destiny. 

15. Paragraph [50] continues:

    Typical of children of her developmental age, she mentioned concepts of fairness in relation to her parents and sharing time.  Although she spoke about equal time in this way, when I asked what she would think if the arrangement stayed the same, Y said that she would not worry.  Overall, the impression was gained that she did not hold a strong view one way or the other. 

16. As I have said, I am satisfied on the evidence that these children express a preference to continue a status quo. More so, however, their real preference is to continue a meaningful relationship with each of their parents free of that parental conflict. 

17. Under the additional considerations I am also to consider the nature of the relationships of the children with each of their parents. 

18. I have already made comments in respect of this factor but I think it is important to look further.

19. At paragraph [43] the family report says:

    The children seemed to accept that their parents have differences with each other and in their approaches to parenting.  They obviously love and have significant relationships with their mother and their father.  The children appear to try to avoid conflict and to tolerate the problems that they may encounter in either home.  

20. I am to consider the likely changes in the children’s circumstances and the impact of the orders in the terms of the parties’ proposals on the children.  The mother proposes a continuation of the status quo.  I am generally satisfied that these children have thrived in such a situation despite their non-communicative parents and continuing litigation.  It provides them with regular and frequent time with both parents.  It allows them to settle into each home without numerous transitions.  In the case of the father, they settle for five-day blocks which includes weekend and school time. They have both week and weekend time with each parent.

21. I am satisfied that the successful relationships of the children with their parents is evidenced by their success in their education at the (omitted) School.  Although I am not sure that the parent’s proposed changes will occur with the degree of certainty suggested by their affidavits, these proposals of a change in homes and locations is something that perhaps each of the parents might reflect upon after considering these reasons and the evidence of each of the other parent.  These children, as I have said, do not desire change. They have managed to develop a familiarity within each parent’s home and with the variance of parenting styles provided to them.  It is admirable and says a lot about these children.  The parenting styles are notably distinctive.  The father is regimented, ordered, demands routine and precision. Whereas the mother is laissez-faire in her parenting of the children.  She is less guided by clocks and timetables.  Each of those parenting styles brings some difficulties as well as some positives.  The result is two socially well-adjusted young children and the parents should be proud of them. 

22. I must address any practical difficulties emanating from the orders and the proposals of the parties to the evidence.  Both parties currently live in close proximity and this allows the children to easily transit between their homes. 

23. The next factor that I have to address is the second major issue raised by the father in respect of his complaints as to the mother’s capacity to attend to the children’s physical, intellectual and emotional needs.  In particularising his argument, he says that the mother is disorganised in her home environment; that she lacks punctuality; that she cannot get the children to attend at their schools on time; and that she lacks the facilities and intent to assist these children in matters such as their homework and attendance at extracurricular activities. 

24. As I have indicated, there is some evidentiary merit to Mr Juliet’s particulars of complaint against the mother.  She has indeed a poor record of providing her children to school on time.  School is a place where these children derive the routine and order they want and perhaps some respite from their parents’ continual disputes in respect of them.  The school sets times for their attendance.  There is, therefore, an obligation on all parents to get their children to school on time.  It is not a loose arrangement. Timetables here are important.  Children learn the benefit of adhering to obligations. The mother’s record in respect of this, as her Counsel properly concedes in his final submissions, has not been good.

25. The father’s position, quite simply, is that the mother could not get the children to school on time and could not organise her household when the matter came before Justice Benjamin. He says that she came to the Court and pleaded that she had addressed the situation whereupon his Honour continued with the children living primarily with her. Mr Juliet says that the mother’s faults and her culpability in regard to these particulars have now been repeated or simply continued.  Mr Juliet says, colloquially, “You’ve had at least two chances given by Courts or me to parent our children.  You haven’t been able to do it.  Give me a go.”  That in a nutshell is his case.  As I have said, there is some factual merit to this assessment. No one can criticise Mr Juliet for bringing those matters of complaint. He now says that past behaviour is the best indication of future behaviour. He says that I should place no weight in the mother’s evidence now that she acknowledges her faults and has taken steps to address them. Mr Juliet says that this was also put to Justice Benjamin five years ago.

26. The mother again says in her evidence that she has addressed these issues and, to her credit, she has not tried to deny the problems. She says that she has consulted Mission Australia. She says that she has established timetables in her home. She says that the recent records of the children’s school attendance shows a distinct improvement. Mr Juliet counter by saying that it is very easy to address situations in the short term when there is the proverbial “Sword of Damocles” hanging over your head by reason of Court proceedings. 

27. There might well be some merit to what Mr Juliet says given that the mother made the same acknowledgments and the same confessions when she was before the Courts some five years ago.  Nevertheless, I do have the evidence before me of some improvement by the mother.

28. I have also had the considerable advantage of viewing the mother in the witness box when cross-examined intrusively and incisively in respect of these issues by Counsel for the father. I am satisfied, on the balance of probabilities, that Ms Jones does acknowledge her downfalls and has taken positive steps to address her difficulties and, most importantly, understands the need to do that in the interests of X and Y.  The pity is, as Mr Juliet would undoubtedly argue, that it has taken a further Court event for that to happen.

29. The capacity of the father is also, in my view, compromised to a degree. It is commendable that someone who professes to have an income of approximately $20,000 per annum is prepared to continue to pay $28,000 per annum for the children’s school fees at a local private school.  Undoubtedly, the mathematical conundrum that flows from that will be investigated in detail at the child support hearing which will continue at another date. 

30. In my view, the difficulties with Mr Juliet’s parenting and the impact on the children are more esoteric or puzzling and perplexing.  He is, to a fault, overly critical of the mother. Whilst there is some merit to his criticism he needs to understand that there is no one proper or perfect parenting style. He is over vigilant in gathering evidence for his criticisms of the mother and her parenting style to such an extent that he will involve the children in the investigative process in his questioning of the children and embroiling them in their dispute. I fear that Mr Juliet’s prima facie ability to be a good and beneficial parent to X and Y will be compromised by his own rigour and regimentation and this lack of insight into the effect on his children of such behaviour.  He is undoubtedly able to attend to the children’s physical needs with the obvious caveat of his financial position noted above. It would benefit Mr Juliet to reflect as to the successes that his children have achieved in their adolescence to date despite what is a litany of criticism in his affidavit material of the mother who has, after all, been the primary carer for his children to date.  Mr Juliet might stand back and ponder as to why these two young children are so secure and achieving socially and academically despite the criticisms that he makes of the mother. 

31. Matters of attitude as to the responsibility of parenting have some relevance on the material before the Court.  Although not pursued with any vigour in cross-examination, it appears that there has been a tendency by the mother on at least one occasion to take a subjective or selfish interpretation of Justice Benjamin’s orders in respect of school holiday time for her own benefit.  I have made comments on the personality of Mr Juliet. If anyone should anticipate the likely responses and reactions of Mr Juliet to such behaviour, it should be Ms Jones.  Ms Jones here shows a lack of prioritising of the children’s needs and a lack of understanding of the impact of the behaviour on the children’s relationship with their father and a lack of respect for Mr Juliet in his role as the father of these children.

32. Nevertheless, I am satisfied, as I indicated to each parent on a number of occasions during the course of the evidence that, relative to many of the parenting matters that come before me in this Court, these two parents are capable, good, proper, loving parents  This is not a matter that is highlighted by neglect or child abuse.  It is a matter that is highlighted by two different personalities; each of them strong in their own way but opposite ends of the spectrums of personality and parenting style.

33. I am satisfied that X and Y each have a meaningful relationship with each of their parents.  There is no evidence before me of any probity of family violence or child abuse which, at this stage, impact on the children’s living or parenting arrangements. I am satisfied that the children’s preference is a continuation of the status quo but with an emphasis on the removal of them being exposed to or embroiled in parental conflict.  I am satisfied on the balance of probabilities that each of these parents individually have the capacity to attend to their children’s physical, intellectual and emotional needs. 

34. My remaining doubt is whether Mr Juliet and Ms Jones have any ability to communicatively and cooperatively parent their children to any degree.  It is a strong comment on the nature of these two parents that, after some 11 years of separation and surely having waded through the personal difficulties that follow the breakdown of an emotional relationship, that they still remain unable to communicate effectively in respect of their children. I wonder as to the responses of these children if on their 18^th birthdays someone says to them, “X/Y, what were the highlights of your childhood as you become an adult?” I hope the answers will not be, “An enduring memory of being involved in Family Court proceedings.”

35. On the balance of probabilities, I am not persuaded that Mr Juliet has brought these proceedings with any mala fides although I am certainly mindful of the fact that the issue of parenting arose again only contemporaneously with, and in response to, an application by the mother for child support orders. In that sense, I can only hope that Mr Juliet has considered his children’s best interests and was not simply being opportunistic in that respect.  I give him the benefit of any doubt in this respect.

Conclusions.

1. Taking all of those matters into account, and on the balance of probabilities and with some emphasis on the views and preferences of these mature, adaptable and resilient young adults, being the children, I am of the view that the status quo should continue in respect of these children’s living arrangements and that they should continue to spend nine nights a fortnight with their mother and five nights a fortnight with their father. 

2. If there is an issue in respect of school holidays, and noting the efforts of his Honour to cater for every detail in these children’s school holidays, I prefer a simple order which will not leave much open for interpretation, and that is an order in the terms suggested by Mr Munro of Counsel for the mother; that the children spend one lot of term holidays with the father, one lot of term holidays with the mother, the third term holidays to be shared and the summer school holidays to be shared. 

1. An issue arose on the evidence in relation to Mr Juliet’s use of cannabis. On some reflection I do not intend to make any injunctive orders. He is a 62-year-old man. In every other sense he demonstrates, in my view, a responsible attitude to the parenting of his children, if not one which is overly assertive and overly critical of the mother at times.  I would hope that the injunctive orders that I am regularly required to make for 19 and 20-year-old parents restraining the use of illicit drugs in the presence of their children should not need to be made for a 62-year-old parent. I do not intend to make that order. I will simply remind Mr Juliet in these reasons that it is my understanding that in the State of Tasmania the use of cannabis is illegal and that the sentencing options available to Magistrates and Judges involve a possibility of a term of imprisonment, and ask him to stand back and think of the effect that it would have on his children if he was to be publicly disgraced and/or imprisoned in such circumstances.  I will leave the onus on Mr Juliet. 

2. I have had the benefit of the family therapist report.  To be blunt, it did not assist me in any sense other than I could glean in my own unqualified observations from these parties in the witness box and from their affidavits. The therapist herself raises a possibility of continuing family therapy. I am not inclined to make an order which would involve these children having further contact with behavioural scientists, social scientists, counsellors, psychologists, social workers or the like.  I would prefer these children to enjoy the later years of their childhood by having the alternative therapy that accompanies activities such as going to the beach, kicking a football and other childhood and adolescent pursuits of a free and open nature. Any formal “therapy” would inevitably further involve them in parental dispute and conflict. There is no evidence of the children themselves suffering any emotional or other condition that would be assisted by “therapy”. Mr Juliet and Ms Jones themselves have had eleven years to deal with their own problems.  I am certainly able to assist them.  If they have here had eleven years of counselling, therapy, investigation and Court determinations, and they have not achieved any positive benefits then it is a sad indictment on each of them. My observations unfortunately suggest that I can have little confidence that there will be cooperative parenting for these children in the last years of their childhood. At best these children might benefit from some parallel parenting where each of the parents parent these children according to their preferred styles but without interference or criticism from the other parent.  Each of their styles can have real benefit for these children. 

3. Consequently, given the history of this family, the children’s ages and the children’s own resilience and adaptability, I am satisfied that the children’s best interests are served by the parents continuing to exercise equal shared parental responsibility.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date:  11 September 2015