Fenwick and Fenwick

[2010] FamCA 326

FAMILY COURT OF AUSTRALIA

FENWICK & FENWICK [2010] FamCA 326

FAMILY LAW – CHILDREN – issue as to the petrol costs of the father for travel between Adelaide and Victorian border region – consideration of the parties’ financial circumstances – order for mother to contribute to the father’s petrol costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Fenwick

RESPONDENT: Ms Fenwick

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3361 Of 2008

DATE DELIVERED: 6 APRIL 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 6 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS O'LEARY
SOLICITOR FOR THE APPLICANT:	BC O'LEARY & ASSOCIATES

COUNSEL FOR THE RESPONDENT:	MR HEMSLEY
SOLICITOR FOR THE RESPONDENT:	GRAEME D HEMSLEY & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR WINTER
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. On each occasion that the father spends time with the children A born … June 1993 and N born … April 1995 the mother contribute an amount of TWENTY FIVE DOLLARS [$25.00] with such amount to be conveyed to the father at the conclusion of each period spent by the father with the children.

2. Liberty is granted to the father to arrange for the transportation of the children by bus between Adelaide and R subject to the wishes and agreement of the children UPON NOTING that in the event that such bus travel is arranged payment of the aforesaid sum of $25 by the mother to the father is not required.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 3361 of 2008

MR FENWICK

Applicant

And

MS FENWICK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for determination a multitude of parenting issues impacting upon two teenage girls A who is almost 17 years of age having been born in June 1993 and N born in April 1995 and who is therefore almost 15 years of age. Originally the issues between the parties were highly contested and entailed a significant number of disturbing allegations.  Those allegations were of such a nature that it attracted the attention of the matter to the Court’s Magellan Project and the proceedings have been managed in the Magellan Project for quite some time.

2. As a consequence of information received by the Court and in particular the Family Report dated 1 June 2009, the parties have, to their credit, been able to resolve essentially all issues between them.  As a result of lengthy negotiations to which, as I understand it from the Independent Children’s Lawyer, they attended with significant dedication to task I was able this morning to make final Orders by consent in respect of all matters save one discrete issue.

3. The one discrete issue that the parties require me to determine is as to the costs associated with the father seeing the two girls once per fortnight on a weekend.  A significant feature in enabling the father to spend time with his two daughters and in securing their continued regime of spending time with their father was him securing independent accommodation.  I am informed that the only South Australian Housing Trust accommodation that he could secure after many representations on his behalf, is in R, near the Victorian border.  That created a significant issue of distance and time associated with the travel each fortnight to enable the father to see his daughters. 

4. As is frequently the case in matters that come before this Court, each of the parties has limited income available to them in order to do the best they can in caring for their children and in attending to their own individual needs.   Each of the parties is in receipt of a disability pension from Centrelink of $600 per fortnight.  Thereafter the expenses they incur differ in a number of respects.  In relation to the father, his rental is $170 per fortnight.  The rental of the mother is $400 per fortnight.  The father pays what I would describe as the barest minimum of child support for his two teenage daughters of $15 per fortnight and outstanding Court fine fees of $35 per fortnight.  To assist the mother in caring predominantly for the two girls she receives a family tax benefit of $310 per fortnight.  She then has the usual expenses that every citizen has in relation to electricity, insurance, medical benefits and the like.  Each of the parties also needs to attend to the expenses of maintaining their motor vehicle.  It is this particular expense that has not enabled the parties to reach final agreement on all matters impacting upon the wellbeing of the children in that the distance between R and Adelaide is significant and is a journey of between 4 or 5 hours.  The evidence of the father is that it costs him approximately $50 for a tank of petrol.  He says that he uses a tank of petrol on each leg of his journey which makes it a $100 expense for the entire journey R / Adelaide / R.  Of course he needs to undertake that journey twice each time he sees his daughters and so his expense in relation to petrol alone is $200 per fortnight.  He says that on his limited income and despite his modest expenditure he is struggling to meet those costs and asks that the mother contribute to those costs in some way, either as to the provision of some cash to him or in sharing the driving.

5. It is the mother’s case that she simply cannot afford to contribute in that respect.  She promotes as an option that the two girls take the journey between Adelaide / R / return by bus and there is general agreement between the parties that each bus trip would cost in the region of $50 one way and hence the cost per fortnight would be one-half of the existing petrol expenses incurred by the father.

6. As always there is no easy answer to matters of this nature and quite clearly the fact that there is no easy answer is the reason why the parties, despite being able to agree on everything else, were not able to agree on this particular issue.

7. There are a number of other factors that are relevant, one being that A herself receives a Centrelink benefit of $200 per fortnight.  She does not pay any board to her mother but obviously a number of A’s expenses are met from her own Centrelink benefit and she is able to relieve the mother of those particular expenses to some degree. However, I accept the submissions of the Independent Children’s Lawyer that children of this age, being almost 17 and 15, are at the age where they will be costing the mother significant amounts in meeting their various needs and demands and that such a situation will constitute a significant strain on the mother’s finances.  It is in that context relevant to again note the very limited child support that the father pays to the mother of some $15 per fortnight.  Thus the mother needs to meet almost the entirety of the expenses of raising two teenage girls from her own sources without any assistance at all from the father.

8. The petrol costs that he incurs can be seen as very much to his benefit in terms of seeing his own children but it would be unfair and inaccurate to view it in that light alone.  The girls clearly wish to maintain a relationship with their father and in those circumstances the Orders are for the benefit of the children themselves and hence the expenditure of the petrol money is also for the children.

I certify that the preceding eight (8) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  6 April 2010