Boulton & Boulton (No 4)
[2024] FedCFamC1F 427
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boulton & Boulton (No 4) [2024] FedCFamC1F 427
File number: SYC 1491 of 2021 Judgment of: ALDRIDGE J Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to amend final orders pursuant to the slip rule – Mother seeks orders extending the father’s liability to pay child support – Where the word “not” was omitted from the reasons but the final orders give effect to the intention expressed in the judgment as a whole – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: Boulton & Boulton (No 3) [2024] FedCFamC1F 269 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 31 May 2024 Place: Sydney Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Mathews Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 1491 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOULTON
Applicant
AND: MR BOULTON
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to r 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 12 of the final orders made by His Honour Justice Aldridge in the Federal Circuit and Family Court of Australia (Division 1) at Sydney on 24 April 2024 is stayed pending further order.
2.Order 2 of the interim orders made 25 March 2021 continues pending determination of the appeal.
3.The wife’s Application in a Proceeding filed 22 May 2024 with respect to costs, is listed for directions only at 9.30 am on 18 October 2024 and leave is granted to the parties to apply to vary that listing date in the event the appeal has been determined or has not been determined.
THE COURT FURTHER ORDERS THAT:
4.The wife’s Application in a Proceeding filed 22 May 2024 with respect to the slip rule is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boulton & Boulton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
There are a number of applications before the Court today. All but one has been resolved by the parties. By an Application in a Proceeding filed on 22 May 2024, Ms Boulton (“mother”) seeks the variation of Order 20(a) and 20(c) of the orders made by me on 24 April 2024 under r 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Those orders were, in effect, parts of a child support departure order.
It was not in dispute at the final hearing that there should be such an order, rather the dispute between the parties was as to the extent of such an order and each party made limited submissions in support of their proposal.
I have not had the advantage of checking the transcript, but my recollection is that no submissions were made at the time along the lines of the submissions that are now being sought to be made. Certainly, some of the evidence that is now relied on was not before the Court at the final hearing.
The intent of the orders sought by the mother is to extend the liability of the father to pay child support.
In summary, the effect of the orders that were made on 24 April 2024 was that discretionary extracurricular activities for the children and costs of medical and other care would be included in the order only to the extent that the father agreed with them. The order that is now proposed seeks to make him liable whether he consents or not.
I addressed this question in the reasons (Boulton & Boulton (No 3) [2024] FedCFamC1F 269) and at [676], I said:
In circumstances where the mother has sole parental responsibility for the children, I do consider it either appropriate or just for the father, in effect, to indemnify the mother for all of the children’s expenses.
It seems to me, and in regard to the plain terms of [676] and the orders that were ultimately made, that the word “not” has been unfortunately omitted from that paragraph and it should read “I do not consider…”. That is the only way for that paragraph to make sense, particularly when it is read in conjunction with [679] which is the acceptance of the form of the father’s proposed orders which included the requirement for consent.
It is said that I have made an error because if the mother was to have sole parental responsibility, as is the case here, and where I have found that communication between the parties was all but impossible, I therefore cannot have intended her to seek the father’s consent before engaging in medical treatment or incurring extracurricular activities.
The other way of looking at it is that where the mother has sole parental responsibility for the children and she is at liberty to choose whatever extracurricular activities she wishes and whatever medical treatments she wishes by whom and at whatever cost she proposes, she can either pay for them herself or seek the father’s consent, which she is not obliged to do. That seems to me to be the clear intent of [676].
In short, I consider that the orders give effect to the intention as expressed in the judgment and if there is an error, it is a matter for appeal and not for the application of r 10.13(1)(h) of the Rules.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 24 June 2024
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