Custer and Noble

[2007] FamCA 1596

FAMILY COURT OF AUSTRALIA

CUSTER & NOBLE [2007] FamCA 1596

FAMILY LAW – CHILDREN – Less Adversarial Trial – Final hearing of a LAT proceedings – Following discussion, agreement reached – Commentary upon the effect of entrenched parental conflict upon development of young children

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 498
PRL & KMB [2005] FamCA 242

APPLICANT: Mr Custer

RESPONDENT: Ms Noble

FILE NUMBER: MLF 3184 of 2002

DATE DELIVERED: 6 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 6 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Goddard Elliott

Orders

1. That the children of the marriage, K born … September 1998 and D born … March 2001 ('the children") live with the Husband for Easter as follows:

   (a)from 5.30 p.m. Maundy Thursday 2008 until 5.30 p.m. Easter Monday in 2008 and each alternate year thereafter.

2. That the period the children live with the Husband be suspended and the children live with the Wife in addition to the periods in paragraphs 4 and 5 of the Orders made 30 July 2007 for Easter as follows:

   (a)from 5.30 p.m. Maundy Thursday 2009 until 5.30 p.m. Easter Monday 2009 and each alternate year thereafter.

3. That Orders 1 and 2 hereof be incorporated into a Consolidated Minute of Orders and Annexure "A" as attached to these Orders and marked "1" such Consolidated Minute to be the Final Orders for all issues concerning the children between the parties.

4. That all extant proceedings be otherwise dismissed and removed from the list of cases awaiting final determination.

5. Certify for Counsel for the Wife.

6. That pursuant to s.65DA(2) and s.62B, 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 hereto and these particulars are included in these orders.

MINUTES OF PROPOSED ORDERS BY CONSENT

1.That all previous parenting Orders be discharged.

2.The parties have equal shared parental responsibility for the children K born … September 1998 and D born … March 2001 (“the children”) and consult and make a genuine effort to reach a joint decision in the event that long term issues arise in relation to the children concerning:

a)the children’s education;

b)the children’s health;

c)changes to the children’s living arrangements.

3.The children live with the Husband as follows:

a)from the conclusion of school on Friday until the conclusion of school the following Friday each alternate week commencing this day;

b)from 5:30pm on the evening preceding Father’s Day until 5:30 pm on Father’s Day;

c)from the conclusion of school the day before each  child’s birthday or from 5:30 pm if it is not a school day until the commencement of school on the birthday if it is a school day or until 12 noon if the birthday is not a school day, if not otherwise with the husband, unless the birthday falls on a Friday;

d)from 5:30 pm on Christmas Eve until 3 pm on Christmas Day in 2007 and each alternate year thereafter;

e)from 3 pm Christmas Day until 5:30 pm Boxing Day in 2008 and each alternate year thereafter;

f)from 5.30pm Maundy Thursday 2008 until 5.30pm Easter Monday 2008 and each alternate year thereafter;

g)subject to paragraphs 3(f) and 5(h) herein, during each school term holiday for the week the children are otherwise with the Husband pursuant to subparagraph (a) herein save that it concludes at 5:30pm on the Saturday of the first week of the school term holiday and 5:30pm on Sunday if on the second week of the school holiday (instead of the conclusion of school on the Friday);

h)during the long summer vacation as follows:

i.) from 4 pm New Years Day until 4 pm on 22 January in each year the Husband travels with the children to India save for 2007/2008;

ii.)from the conclusion of school at the end of the year until the commencement of school the next year save for the periods the children live with the wife pursuant to sub-paragraph 5 (e)(i) and 5 (f) and 5 (g) below each year the husband does not travel to India  save for 2007/2008;

iii.)from 27 December 2007 until 22 January 2008 inclusive;

i)from the conclusion of school or 5:30pm if it is not a school day on the day preceding the Husband’s birthday until the commencement of school or 5:30pm if it is not a school day on the Husband’s birthday;

j)As may be further or otherwise agreed.

4.The children live at all other times with the Wife.

5.The period the children live with the Husband be suspended and the children live with the Wife in addition to the period in paragraph 4  herein as follows:

a)from 5:30pm on the evening preceding Mother’s Day until 5:30pm on Mother’s Day;

b)from the conclusion of school or 5:30pm if it is not a school day on the day before each child’s birthday until the commencement of school, or 12 noon if the birthday is not a school day, if not otherwise with the Wife unless the birthday falls on a Friday;

c)from the conclusion of school at 5:30pm if it is not a school day on the day preceding the Wife’s birthday until the commencement of school or 5:30pm if not a school day on the Wife’s birthday;

d)subject to paragraphs 3(f) and 5(h) herein, during each school term holiday for the week the children are otherwise with the Wife pursuant to these Orders save that her period with the Children concludes at 5:30pm on the Saturday of the first holiday week or 5:30pm on Sunday if it is the second holiday week (instead of at the conclusion of school on the Friday);

e)during the long summer vacation as follows:

i.from 4 pm New Years Day until 4 pm on 22 January in each year the Husband does not travel with the children to India; save 2007/2008; and

ii.from the conclusion of school at the end of the year until 4 pm on New Years Day and from 4 pm on 22 January until the commencement of school that year in each holiday period the Husband does travel to India with the children; save for the Christmas periods in subparagraphs 3 (d) and 3 (e) hereof save for 2007/2008;

iii.from the conclusion of school until the Husband leaves for India and from 10 am 23 January 2008 upon his return until the commencement of school in 2008 except for any time when the children are with the husband for Christmas and his birthday;

f)From 3 pm Christmas Day until 5:30pm on Boxing Day in 2007 and each alternate year thereafter;

g)From 5:30pm Christmas Eve until 3 pm Christmas Day in 2008 and each alternate year thereafter;

h)from 5.30pm Maundy Thursday 2009 until 5.30pm Easter Monday 2009 and each alternate year thereafter.

i).     as may be further or otherwise agreed.

6.That changeover occur at the children’s school(s) unless closed in which event the Wife shall collect the children from the Husband’s residence at the commencement of her period with them and the Husband collect the children from the Wife’s residence at the commencement of his period with them; with the parties to remain at the front of the other’s property.

7.The parties ensure the children be at liberty to telephone each parent whenever they may wish. 

8.The parties shall communicate with each other with respect to the children’s welfare by the Wife obtaining and the parties retaining a Communication Book to travel with the children in one of their school bags and in addition the Husband be authorized to telephone the Wife on her landline telephone number at 9pm on each Tuesday only. 

9.The Husband be permitted to travel with the children to Mumbai, India each year as follows:

a)in the 2007/2008 long summer vacation from the 27^th December 2007 until the 22^nd January 2008 inclusive;

b)commencing from the long summer school vacation in 2009/2010 for up to three (3) consecutive weeks in the long summer vacation from 4:00pm on New Years Day until no later than 4:00pm on 22 January of that year, such travel to be once per year but not in consecutive years.

10.The Husband’s travel with the children to India is conditional upon the following:

a)the Husband notify the Wife in writing on or before 15 July if he proposes to travel with the Children during the next long summer vacation and provide an itinerary with flight details and times eight (8) weeks before the departure date and a telephone contact number for the children in India;

b)the Husband execute a charge in the form of Annexure A (“The Charge”) contemporaneously with receiving the children’s passport pursuant to these Orders;

c)the Wife be at liberty to lodge a caveat at her expense pursuant to the Charge and against the Husband’s real property situate and known as …, B, or in the event this property is sold such other real property the Husband may own in Australia from time to time, contemporaneously with the release to the Husband of the children’s passports pursuant to paragraph 11 (a) hereof;

d)the Husband return the children’s passport to the Wife’s solicitors, Goddard Elliot, within 48 hours of his return from India;

e)the Wife have make up time with the children with respect to the Husband’s 2007/2008 India trip from 4:00pm 22 January 2009 until 5:30 pm on 28 January 2009.

11.That the children’s passports be held by the Wife’s solicitors, Goddard Elliot, and will be released to the parties as follows pursuant to their intention to travel or if otherwise necessary for identification of the children or the renewal of the passports:

a)eight (8) weeks prior to the date of departure of the Husband and the children for India;

b)to the Wife within seven (7) days of any written request to them by her a copy of which request having been provided by her to the Husband should she wish to travel with the children and provide an itinerary with flight details and times before departure and a telephone contact number for the children whilst on holiday to the Husband and shall be returned to Goddard Elliot by her within 48 hours of their return;

c)as may be further required jointly by both parties in writing.

12.The Wife remove any caveat lodged by her against the Husband’s real property pursuant to these Orders upon the return of the children from India and then the return of the Children’s passports by the Husband to Goddard Elliot solicitors in paragraph 10 (d) hereof.

13.That the week about arrangement for the children in these Orders is suspended during the long summer vacation and shall recommence in accordance with the cycle the next academic year.

14.That pursuant to s.65DA(2) and s.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 parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

15.That all outstanding applications of the Applicant Husband and of the Respondent Wife be otherwise dismissed.

IT IS NOTED:

A.The Husband leaves with the children at 12.00 am 27 December 2007 for India pursuant to paragraph 9(a) of these orders and the Wife will return the children to the front of the Husband’s residence at 7.00 pm on 26 December 2007 to facilitate this.

B.In the event either party wishes to travel overseas with the children other than to India then the other party’s consent be not unreasonably withheld and provided the Wife be at liberty to lodge a caveat secured against the Husband’s real property as provided in these Orders as security for the children’s’ return.

C.Pursuant to the Notation made on 27 May 2002 Orders the Wife repeats she does not oppose the Husband bringing up the children as Catholic.

ANNEXURE “A”

AGREEMENT

THIS AGREEMENT is made the                day of  200

BETWEEN:

MR CUSTER of …, B in the State of Victoria … (“the Husband”)

- and –

MS NOBLE of …, V in the said State, … (“the Wife”)

WHEREAS

A.The Husband the Wife are the parties in Family Court Action MLF 3184 of 2002.

B.The parties propose that Final Orders be made by Consent in the Family Court of Australia at Melbourne on 29 June 2007 (“the Orders”)

C.Paragraph 10 of the Orders allow the Husband, upon giving the Wife notice in writing on or before 15 July to take the children K born … September 1998 and D born … March 2001 (“the children) to India for a period of up to three (3) weeks (“the relevant contact period”) with the first trip commencing in the Christmas holiday period 2007/2008, again in 2009/2010, and again in subsequent years.

D.The Wife is concerned the Husband may not return with the children from India in accordance with the Orders.

E.India is not a signatory to the Hague Convention on Child Abduction.

F.The Husband is the registered proprietor of the real property situate at …, B, Victoria, …, being more particularly described as all that land contained in Certificate of Title Volume … Folio … (“the real property”)

G.As and by way of security for the return of the children, the Husband has agreed to provide the equitable charge created by this Agreement.

NOW THIS AGREEMENT WITNESSES:

1. Charging of the Land

1.1The Husband grants to the Wife a charge over the real property or any other real property purchased in substitution therefore as and by way of security for his compliance with the Orders and irrevocably consents to the Wife lodging a caveat in reliance upon that charge.

1.2The Charge created by this Agreement shall be extinguished upon the husband returning the children’s passports to the wife’s solicitors upon their return from India as provided in the said Orders.

2. Appointment as Attorney

Where the children are not returned to the Wife at the end of the relevant contact period save and except if the Husband is delayed in his return through no fault of his own in accordance with the Orders the Wife shall have the sole power to: -

a)mortgage the real property;

b)list for sale the real property;

c)manage the said sale (on an urgent basis if necessary); and

d)to deal with the proceeds of sale in accordance with paragraph 3 hereof.

and for this purpose irrevocably appoints the Wife to do all such acts and things and sign all necessary documents to effect any or all of the above powers which the Husband may be lawfully authorised to do.

3. Proceeds

The Wife is hereby authorised to utilise the proceeds of sale of the real property

a)to pay the legal and estate agent costs, advertising and any other costs of the sale;

b)to discharge any mortgage over the real property;

c)to pay all legal costs associated with any proceedings in Australia or India relating to the overloading or failure to return the children from India at the end of the relevant contact period;

d)to pay any costs associated with enquiries to locate the whereabouts of the children including but not limited to the costs of any enquiry agent or private investigator;

e)as top any remainder, to hold the same upon trust for the Husband PROVIDED THAT if the Husband does not return the children to the Wife within sixty (60) days from the date of the end of the relevant contact period in accordance with the Orders, without reasonable excuse or without the consent of the Wife, the Husband will be forfeit the proceeds to the Wife.

4. Binding Agreement

This Agreement binds all heirs, successors and assigns and executors and /or trustees of the estate of each respective party.

5. Governing Law

This Agreement shall be governed by the laws of the Commonwealth of Australia and both parties agree to be subject to any applicable Australian Court.

6. Notices

All Notices required to be served pursuant to this Agreement shall be in writing and sent by Registered Post to the other party.  The address for service shall be: -

Wife: Goddard Elliot

110 Kingsway

Glen Waverley

Husband: T J Mulvany & Co

51 Queen Street

Melbourne VIC 3000

IN WITNESS WHEREOF of the parties hereunto have executed this

Agreement on the day and year first hereinbefore written.

SIGNED SEALED AND DELIVERED

by the said MR CUSTER

in the presence of:

………………………………….

Witness

SIGNED SEALED AND DELIVERED

by the said MS NOBLE

in the presence of:

………………………………….

Witness

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3184 of 2002

MR CUSTER  

Applicant

And

MS NOBLE  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to an order that I made on 7 September 2007 and concern two boys, K who was born in September 1998, and D who was born in March 2001.

2. There is a substantial litigation history to this matter following the parties' separation in 2001, being prior to the birth of the youngest child.  It is thus clear that there has been considerable disputation fulminating between them over the long period of time since separation.

3. The matter came before me pursuant to the Less Adversarial Trial procedures and I made orders on 30 July 2007.  There were real and tangible issues at the time between the parties which they adjusted in a sensible and dignified manner, save for a number of other modest issues which were nonetheless very important to the parties and which were recorded in the Notation to my order.  I made two orders on that day and order Number 2 provided that the remaining issues recorded in the Notation to the Consent Orders were adjourned for my determination on 17 August 2007.

4. Ultimately the matter came before me on 7 September 2007 and again following discussion between the parties, resolution was achieved in relation to further issues in dispute, but there remained one final issue, namely the time the children spend with each parent over Easter.  That was adjourned for my determination by way of final hearing this day.  I made facilitating orders that the parties provide affidavit material upon which they may seek to rely. 

5. I have had the advantage of reading the very helpful affidavit of the husband filed on 14 November 2007 which, I hasten to add, was drawn in person.  It is an excellent affidavit and well drafted.  There are a number of practitioners in this court who come before me from time to time that may take a lesson from the husband’s drafting.  I have also had the advantage of reading a very helpful affidavit by the wife which was filed on 27 November 2007. 

6. It is not necessary for me to detail the background as the same has been adequately set out in the affidavit material.  However, in summary, the formal background is that the husband was born in January 1962 in India and is 45 years of age.  He entered Australia in 1990 as a student and took Australia citizenship in December 2002.  He is employed by the Victorian government.  The wife was born in October 1963 in Australia.  She is 44 years of age. 

7. The parties commenced cohabitation in April 1996 and married in May 1996.  Following unhappy differences between them, they separated on 31 January 2001.  There are two children of their union to whom I have earlier referred. 

8. In his affidavit, and which is a complicating issue, the husband records that K was diagnosed in 2005 suffering Asperger's syndrome which has meant that both the wife and he need to be involved in a coordinated approach with the school and be available to collect him should there be any difficulties, in addition to attendances at appointments with various specialists.  The matter came before me this morning and in substance, it had been substantially resolved, with the husband conceding those matters sought by the wife.  The husband's affidavit records his commitment to Catholicism.  He deposed that it had always been “of great importance” to him that the children are brought up within the Catholic faith and that they take part in the sacraments of the church, its rites and celebrations.  Indeed, he deposed that from the outset, the wife agreed with the children being raised within the umbrella of the Catholic faith and a Notation to that effect was included in the original consent orders.  The wife herself is of the Uniting Church faith.

1. The husband deposed to the importance of Easter as a significant event in the Catholic religious calendar, being the crucifixion and resurrection of Christ.  Paragraphs 17 to 19 inclusive set out in a concise form the strength of his belief in Catholicism and his endeavour to inculcate a family spirit with the children in terms that he and his wife share the children, both in quantity and in quality.

2. In paragraph 20 of this affidavit he had this to say:

   “It remains my belief that it is in the children's best interests that special days and events be shared each year.  However, I also believe it to be in the best interests of the children to resolve parenting issues as amicably as possible.  Due to the immense stresses and strains of these proceedings and the financial burden, I am prepared to sacrifice what I believe to be in the long‑term best interests of the children.  As a result, I reluctantly offer to execute minutes of orders by consent to the effect that Easter continues to be shared on an alternate basis in accordance with the arrangements since 2003 provided this does not disrupt the week about rotation which is currently enjoyed by the children.  I am informed and verily believe that [the wife] has agreed to my proposal.”

3. It is important to bring into the narrative recorded by me that the week about arrangement commenced in June 2006 which postdates the arrangements that were entered into pursuant to a Court Order in 2003. 

4. The issue then outlined before me this morning concerned a very modest one indeed.  Ms Vohra continues to appear for the wife and the husband this time appeared in person.  I listened carefully to that which each of Ms Vohra and the husband had to submit which really amounted to whether or not a collection of the children when Maundy Thursday is a school day should take place after school or at 5.30 pm.  The wife sought that changeover take place at the conclusion of school.  The husband, for his part, when it was the wife's time with the children pursuant to the alternate arrangements, sought a window, as he described it, of two hours, namely that the changeover take place at 5.30 pm.  In his submission, he said that he sought to have a "symbolic celebration" with the children, as the aspect of religion and faith meant so much to him and his family.

5. I discussed the issue generally with the parties and I indicated a preliminary view within that permitted by the High Court in Johnson & Johnson (2000) 201 CLR 498, namely that I was more inclined, given the whole of the circumstances, to provide that modest window of opportunity to the husband which would also inure to the benefit of the wife when the children spend time with the husband over Easter in the alternate years. It seemed to me to be a fair observation to make, given the importance of the husband's concession. The matter was stood down and in the result, very much to the credit of the parties, following further discussion between Ms Vohra and the husband, agreement has been reached.

6. It was plain to me, from both reading the affidavits of the parties and listening to the submissions this day that the husband is a deeply religious man ingrained with powerful family commitments.  The importance of “family” ranks very high in his life.  I have indicated to Ms Vohra that I regarded his concession, made for the purpose of this hearing, to be a very important and gracious one indeed.  It seems to me that it was made in good faith and in the hope of avoiding any further conflict. 

7. It is my expectation that in particular the wife will accept that such is the case and herself aim, together with the husband, for the betterment of their parental relationship.  The goal in such a case is one of mutual trust and understanding.

8. As I earlier said, the husband merely sought a window of opportunity limited to two hours to spend time with the children at Easter in the circumstances that I have recounted in narrative form when the children are to be with their mother.  It was an opportunity to share in, as he said, a “symbolic” way his faith with them and it seemed to me proper that should occur, having regard to the whole of the circumstances before me.

9. I do wish to say that it is time for the parties to approach the whole issue of their joint parenting differently now.  The hostility, and I trust that I am not in any way offending the parties, nor do I wish to be critical of them, but it must end because it is clear from a recognised body of learning that its impact upon children is both manifest and obvious, particularly given that it has been a constant presence in the lives of these children.  Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper Enduring Conflict in Parental Separation, Pathways of Impact on Child Development, referenced through the Journal of Family Studies, Volume 9, Number 1, April 2003.  It was in that paper Dr McIntosh focused upon the known impacts of entrenched parental conflict on the development of children.  In the course of her discourse, Dr McIntosh had (inter alia) this to say (pages 64-65):

   “Unresolved, enduring parental conflict can violate children's core developmental needs and threaten their psychological growth.”  

   [Later:]

   “These findings provide a strong impetus to child-focused practices in family law dispute resolution.  They point to a need in the practitioner for an unapologetic mindfulness of the needs of children.  The challenge that this research throws down to the practice front is deal.  To deal with this not as the flavour of the month, nor the latest itch in the Attorney-General's Department, but as a fundamental evidence based push for evolution in practice.”

10. Later, under the heading Through a Developmental Lens, Impact of Parental Conflict, Dr McIntosh went on to say this (page 65):

    “Secure family environments and emotionally responsive parenting in all family constellations provide the core foundation for the developmental needs of children.  Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and implications of parental conflict.”

11. Later, in her paper, under the heading Impacts of Parental Conflict on the Core Developmental Tasks, Dr McIntosh said:

    “Enduring parental conflict disrupts the very organisation of emotional experience in any childhood.  This type of disruption may have both escalating and cumulative developmental consequences.  It interrupts the vital attachment processes in infancy and toddlerhood, with high-intensity conflict linked with the development of insecure and disorganised attachment styles.  In turn, this interrupts the development of emotional security with children becoming more prone to negative emotional arousal under stress, less able to regulate their feelings, less optimistic about their ability to cope and less able to cope.”

12. Later (pages 66-67):

    “A child's ability to regulate their emotions and behaviours develops primarily in a family context.  It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses.  When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.”

13. I have taken the opportunity to incorporate into my judgment those extracts from the paper of Dr McIntosh, because it seems to me that these children have been constantly in the shadow of parents in conflict and in relation to D, for the whole of his life.  It is not to be forgotten also, as I recorded earlier in the judgment, K has been diagnosed suffering Asperger's syndrome, which requires a collaborative approach to his future management and includes a joint task-force approach by the parents in alignment, together, attending medical practitioners and the like. 

14. I think it is important for the parties to leave court this day now knowing they have resolved everything that was in dispute between them.  They should see this day as a giant step forward into the future for the benefit of the children, however, which may only be achieved by collaboration and a development of some form of communication with trust and respect, let alone dignity.  If the children are able to view their parents as being capable of communicating together in a dignified manner, then their tasks in life will be made that much easier and their development that much more friendly in an environment that can achieve that state of mind and emotion.

15. In a judgment I delivered some time ago, PRL & KMB [2005] FamCA 242, I had this to say (at paragraph 413):

    “413:There is an obligation on the part of each parent to foster the image of an absent parent.  That within itself requires discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger to benefit the best interests of their child.  I am not looking to the actions of a perfect parent in a utopian world but of one who recognises the importance of such qualities and strives to achieve that desired end.

    414:That may mean, for example, an aggrieved parent seeking greater understanding by recourse to professional assistance.  To wallow in the mire of dissolution and anger and bitterness can only, certainly by example alone, influence a child in a variety of negative ways against the absent parent.  The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”

16. It is my expectation that the parties will view this day as being an important one.  They will leave behind them all litigation in this court and seek to achieve a platform from which they can work together into the future which is a long one for their two children, who are only aged nine and six years.  They have considerable time yet to go in their joint parenting of the children.

17. I remind the parties that the Objects and Principles of Part VII of the Family Law Act, (1975) incorporating the Amendments and consolidated to July 2006 set out in s 60B(2) which prescribes the principles underlying those objects, namely that, save where it is contrary to a children's best interests, both K and D have “a right to know and be cared for” by both of their parents.  They have a “right to spend time on a regular basis” with and “communicate on a regular basis” with both their mother and their father and other significant people to their care, welfare and development.

18. Significantly, both the husband and the wife “jointly share duties and responsibilities” concerning the care, welfare and development of both K and D and they “should agree” about the future parenting of their children.  The children have a right to enjoy their “culture” and the right to “enjoy that culture with other people who also share” it.  That is clearly being embraced in this case with the husband's visits and return to his family in India with the children.

19. I am delighted to learn that agreement has been reached on this final issue.  I point out that court orders really, by their breadth and complexity, can be quite fragile.  It can be said that shorter orders leave room for communication and co-operation.  The more detailed the orders, the greater the opportunity for conflict.  There will be occasions from time to time when there will be a need for the husband and the wife to communicate about a particular incident that may arise when the children are within one or the other's care that may require for example, attendance at a family meeting or a social function at a time when the children are with the other party.  I would hope that “the other party” would not read these orders with a rigid interpretation and leave no room for variation at all.  There should be room for cooperation.  There should be room for variation, along the “give-and-take” principle.  That accords with just plain good commonsense and dignity.

20. I congratulate the parties on having the steel in coming to this final arrangement and my ready expectation that this is the last time they will come to this court.  I thank you too, Ms Vohra.  You have been here at all times and represented your client with the highest degree of professionalism.  I wish both parties the best for the future.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 18 January 2008