Boulain and Brochant

[2009] FamCA 802

FAMILY COURT OF AUSTRALIA

BOULAIN & BROCHANT [2009] FamCA 802

FAMILY LAW  -  CHILDREN  - final parenting orders  -  Christmas  -  best interests
FAMILY LAW  -  CHILD SUPPORT  -  consent

Family Law Act 1975 (Cth)

FATHER: Mr Boulain

MOTHER: Ms Brochant

FILE NUMBER: MLC 13662 of 2007

DATE DELIVERED: 28 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 28 July, 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Mr. Hoult

SOLICITOR FOR THE FATHER: Berry Family Law

COUNSEL FOR THE MOTHER: Mr. Strum

SOLICITOR FOR THE MOTHER: Taussig Cherrie & Assoc

Orders

IT IS ORDERED BY CONSENT

1. That pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989, this application be heard contemporaneously with the proceedings in this Honourable Court.

2. That pursuant to Sections 116, 117, 118 123 and 124, there be departure from administrative assessment of child support as follows in respect of the children L (born … August 1995), A (born … August 1999) and T (born … June 2005).

3. That in relation to the current child support period and all subsequent child support periods until 31 December 2013 (being the conclusion of the year in which L attains the age of 18 years) the father pay or cause to be paid to the mother for the periodic support of the children periodic child support in the sum of $150 per week per child (a total sum of $450 per week) payable monthly in advance in the sum of $1,950 per month on the first day of each month commencing on 1 August 2009 into a bank account nominated by the mother in writing, such child support to be adjusted on 1 July in each year commencing 1 July 2010 for upward movements in the Consumer Price Index published by the Commonwealth Statistician for all groups for Melbourne by comparison with the Consumer Price Index as it stands on the last published index immediately preceding the date of variation as compared with the same index at the same date 12 months prior thereto.

4. That in relation to the current child support period and all subsequent child support periods until each of the children attains the age of 18 years or completes his/her secondary schooling, whichever later occurs, the father pay or cause to be paid the following expenses for the non periodic support of the children as follows:

   (a)One half of all Crèche and kindergarten fees for T in all of 2009 and 2010 after deduction of any applicable Child Care Benefit and/or Child Care Rebate for which the mother may be eligible AND for the purposes of this Order, the father shall pay to the mother within 21 days by way of reimbursement of one half of such fees paid by her from 2 February 2009 to date subject to proof of all accounts and payments (estimated to be $4,552 and the father's half estimated to be $2,276);

   (b)All tuition fees, pledge, levies and lunch charges (including arrears) and one half of all books, uniforms, school required footwear, equipment, excursions, camps and school related extra curricular activities (including attendant costs) for A to attend S School for the remainder of her primary school education;

   (c)One half of all educational expenses including but not limited to tuition fees, books, levies, uniforms, school required footwear, equipment, excursions, camps and school related extra curricular activities (including attendant costs) for:

(i)       L at B Secondary College for his secondary school education;

(ii)     A at such state secondary school as may be agreed between the parties for her secondary education; and

(iii)     T at such state primary school and state secondary school as may be agreed between the parties for her primary and secondary education.

(d)        One half of all the children's extra-curricular activities inclusive of all attendant costs including clothing, footwear, equipment and enrolment and examination fees;

(e)        One half of all non-rebatable medical, hospital, dental, orthodontic, optical and like specialist expenses for the children.

1. That for the purposes of order 4:

(a)         The non periodic child support payable by the father is not to be credited against the annual rate of periodic child support payable by him.

(b)        Unless otherwise provided herein, the father pay such non periodic child support to the institution or provider concerned on or before the due date for payment or where not reasonably practicable by reimbursement to the mother within 14 days of presentation of a receipt evidencing payment by her.

IT IS FURTHER ORDERED

1. That the children live with the father for one half of the long summer vacation in each year at times agreed by the parties and in default of agreement :

(a)         the second half in 2009/2010 and each alternate year thereafter;  and

(b)        the first half, including Christmas, in 2010/2011 and each alternate year thereafter;

SAVE THAT until such time as the child T commences primary school T live with the father for five consecutive nights (on dates to be agreed between the parties) during his half of the long summer vacation with L and A and in years when L and A live with him during the first half of the long summer vacation, his time with T pursuant to this order will include Christmas.

1. That all extant applications be otherwise dismissed. 

2. That the reasons for judgment delivered this day be transcribed and copies made available to the parties.

3. That these applications be removed from the List of matters awaiting finalisation.

4. That pursuant to s.62B and s.65DA(2), 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

5. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13662 of 2007

MR BOULAIN

Father

And

MS BROCHANT

Mother

REASONS FOR JUDGMENT

1. This case was listed for a trial to determine only two issues as the parties earlier resolved a number of other disputes.  One, the more complex in a legal sense, related to future child support for the parties’ three children.  The other related to the time the children are to spend with each parent over the summer school holidays.  Much to the parties’ credit, they have resolved the child support issues and I will make orders by consent in the terms agreed.  As is not uncommon when litigation has been on foot for a long time, there is a sticking point, and for these parties that has become the whereabouts of the children between Christmas Eve and Boxing Day. 

2. The point for decision is relatively narrow but of great importance to the parties.  As it is a relatively narrow point, I will not recite at length the history of the parties’ relationship and the circumstances since separation. 

3. The mother is 47 and a nurse by profession.  The father is 51 and a self-employed professional.  They met in 1988.  They started living together in 1992 and have three children.  L will be 14 in August, A will be 10 in August and T is four.  T will not start school until 2011. 

4. The parties initially separated under the one roof in about October 2006, and physically separated later that year.  They never married. 

5. Orders made by consent on 10 June 2009 provide for the parties to have equal shared parental responsibility for their children.  Different residence and time regimes operate with each of the children, taking into account their respective ages and developmental stages; they spend a lot of time with both their parents.

6. T, the youngest, is still spending more of the time with her mother.  The parties have agreed, whatever the outcome of today’s determination, that until T starts school in 2011, she will live with her father for five consecutive nights in the long summer holidays, rather than the longer periods that the older children are likely to have.  That is a sensible acknowledgment of her developmental stage. 

7. The order sought by the mother is set out in the further amended initiating application filed by her on 19 June.  She seeks that the children live with the father for half of the long summer vacation, at times to be agreed, and in default of agreement, the second half in the coming school holidays (2009/2010) and each alternate year, and the first half, which would include the Christmas period, in 2010/2011, and each alternate year.  Inherent in her proposal is that the children would be with one parent for the whole of the Christmas period in one year, and with the other parent for the whole of the Christmas period the following year.  For example, they would not be in a position to spend time with one parent on Christmas Eve or Christmas morning and the other on Christmas afternoon or Boxing Day.  Geographical constraints lie behind the mother’s application.

8. The orders sought by the father in relation to Christmas are set out in a further amended response to initiating application filed on 25 June 2009.  Like the mother, he identified a section in his affidavit in which he makes his case as to why the children should be (by way of example) with the mother from 5:00 pm. on Christmas Eve, until 4:00 pm. Christmas Day and then with him from 4:00 pm. Christmas Day to 4:00 pm. on 27 December, this year.

9. In essence, what he would like is that the parent with whom the children are to spend the first half of the school holidays organises the time to ensure that the other parent has an opportunity to spend a day, or a day and a half, with the children, right around Christmas. 

10. The mother’s original application had been for an order which would allow the children to relocate to live with her on the central New South Wales coast.  That application was subsequently withdrawn and she sought other orders.  She is one of six children;  most of them live in New South Wales and Queensland.  Her mother, who is in her eighties, has returned to live on the central coast of New South Wales.  She is in poor health.  The mother wants to be in a position to take the children with her to the central coast for school holidays.  If the orders as sought by the father are made, she would either have to delay leaving in the years that they are with her in the first half of the period, so they can spend time with him on Christmas Eve or Christmas Day, or leave as soon as she was able (when school finishes) and send or bring them all back in order to spend some time with their father on Christmas Eve or Christmas Day.

11. The mother wants the children to have the opportunity to spend three weeks with their maternal extended family and with their grandmother while she is alive, without having to reduce the time or break the period. 

12. It is common ground that the children were with their father on Christmas Eve last year, and were to be returned at 4:00 pm. on Christmas Day.  It is also common ground that they were returned earlier, and I will say something about the father’s explanation for that in a moment. 

13. The father has submitted that he has a very extensive family.  His parents are alive;  the children have aunts and uncles and cousins.  There is a big, extended family network.  From his perspective, it is vitally important that the children have an opportunity to celebrate Christmas as part of that extended network every year, not every second year, as would be the case if the orders sought by the mother were made.

14. The father does not disagree that the children were returned early last year, at 1:00 pm. rather than 4:00 pm.  He said that – and these are his words – the “important Christmas Eve” spent with his family was complete.  The children were up early, unsurprisingly, given their ages, to open their presents from him.  They were, probably also unsurprisingly, keen to get to their mothers to open the presents they anticipated would be waiting for them at her home.  There is a side dispute about whether they had or had not been fed when they returned, but that is not of the essence. 

15. In terms of the law, the paramount matter for the court is the best interests of children.  A decision such as this is not about fairness to adults, or the rights or interests of the parents.  The emphasis of the legislation is on the right of children to enjoy meaningful relationships with both their parents and with others important to them, which includes members of extended families.  Fortunately, this is not a case where the court has to consider matters referable to protecting children from abuse or violence. 

16. Sensibly, counsel have made the case by submissions.  The evidence on which each of the parties relies is spelt out clearly in their affidavits and I am confident cross-examination would not have taken the matter any further.

17. The court must accept that the decision will be seen, by one or other parent, as arbitrary and one or other will be very unhappy about the outcome. 

18. I do take into account the fact that the proceedings began with a relocation application, but the court must look at the reality now.  The children are sharing their lives between two homes, in close proximity.  They are fortunate children to have the love and support of extended family on both sides.  That is a good indicator for developing resilience in children.

19. I take into account the strength of the relationships the children have with their parents, relatives and each other, and the importance to each of the parents of involving the children with his or her extended family.  I also take into account the costs of travel to New South Wales, and the priority the father places on the celebration on Christmas Eve. 

20. Balancing all factors, I am satisfied that the proposal advanced by the mother is the proposal which is more likely to be in the best interests of the children, ensure stability and consistency in the children’s lives, and minimise parental stress, which can impact on them.  In each second year they can spend a belated Christmas with their father’s family.  The experience of the court is that children are often much more flexible about Christmas than adults, and revel in a second celebration.  The court has no evidence of that in this case, as it has not yet occurred, but it is nevertheless satisfied the mother’s proposal is more productive of the children’s welfare. 

I certify that the preceding
20  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.