Wynn & Wynn

[2007] FamCA 525

FAMILY COURT OF AUSTRALIA

WYNN & WYNN [2007] FamCA 525

FAMILY LAW - CHILDREN - Parties spent many years in court system - Reached consent orders on all major issues prior to commencement of trial - Remaining issue who to bear cost and responsibility of driving children to spend time with their father - 200km round trip - Compromise reached by parties.

Family Law Act 1975 (Cth) ss 60B, 60CA & 60CC

APPLICANT: MRS WYNN

RESPONDENT: MR WYNN

FILE NUMBER: ADF 2676 of 2003

DATE DELIVERED: 5 February 2007

PLACE DELIVERED: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 5 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H.A. Leeson

SOLICITOR FOR THE APPLICANT: David Peacock

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. That the consent orders previously recorded by me this day be varied to indicate that the commencement of each period of time that the father spends with the children shall be 9.30 am.

2. That the father collect the children at the commencement of each period of time that he spends with the children from the front gate of the mother’s premises and returns the children to the mother’s premises on each alternate occasion of time he spends with the children.

3. That the mother attends to the travel associated with each alternate period of time that the children are to be returned to her by attending at W to collect the children from the front gate of the father's premises.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2676 of 2003

MRS WYNN

Applicant

And

MR WYNN

Respondent

REASONS FOR JUDGMENT

1. At the commencement of trial proceedings before me this morning there were, on the face of it, significant issues in dispute between the parties.  They had spent many years in the Court system, endeavouring to reach a conclusion to those issues.  They had, until today and despite a number of efforts over a long period of time, been unable to reach that resolution between themselves.  However, Ms Leeson, very experienced counsel for the wife, proposed to the husband, who accepted the proposal, that there ought to be some discussions between the parties before commencing the trial proceedings this morning.

2. Those discussions and negotiations were particularly fruitful and have resulted in me being able to record consent orders in respect of all of the major issues previously in dispute between the parties.

3. Having read and understood the respective positions of each of the parties at the commencement of the trial, I am fully aware of the fact that each of them has made concessions and offered compromises in order to achieve this agreed and negotiated outcome.  It is a matter of great credit to each of them that they have done so. 

4. Having now been in this jurisdiction for probably something like 37 years, and a Judge for some 9 years, it is an all too common experience for the parents of children to lose sight of their children's needs and interests as they stubbornly pursue their own needs and interests.  It is a credit to both in this case that they have not done so. 

5. After what is a relatively short period of time in negotiation, they were able to reach a position that recognised their children's needs, and clearly each of them has set aside quite a number of their own needs in reaching that position.  So I mean it when I say I congratulate them on that outcome.

6. The probability is that one day their children will understand that their parents were able to reach that agreement between themselves when the eleventh hour came.  Social scientific research tells us that this day will be quite significant in the lives of the children.  They will be the beneficiaries of the knowledge and the fact that their parents have been able to get on to this degree.  Hopefully, that flows over into future negotiations and dealings between the parties. 

7. Obviously there will be quite a significant number of changes still to be faced by the parties as the children grow older and as their educational and social needs alter.  In fact the point will be reached, I have no doubt, when their children, as they get to teenage years, will start to tell their parents what it is that they are going to do and will remove that decision-making from their parents.

8. It has been a signal day, I think, for the family, and I repeat:  it is of great credit to them that they have achieved such significant agreement.

9. There is only one area in which they were not able to reach agreement, and that is the issue of who should bear the additional cost or responsibility of undertaking the driving for each occasion that the children spend time with their father.

10. Both parties previously lived at W.  Recently, however, the wife, on her evidence, was essentially forced to sell her property at W and move to M.  Part of the issue was cost.  She has expended significant amounts on legal fees and incurred other significant expenses in terms of raising the children and just general living.  She acknowledged though, that there were other reasons why she had made the move to M, which included being closer to her employment in S and closer to other support, such as a girlfriend and her mother.

11. The wife gave evidence about the quite significant toll that parenthood is having upon her when combined with the fact that she is working in two jobs in order to support herself and her family, with the additional support of child support being provided by the husband.

12. I accept her evidence as to the quite time‑consuming and at times, stressful role that being a single parent can be, in circumstances where that responsibility falls to her for every day of the year bar three days per month when the children are with the father.

13. In a spirit of compromise, she proposed that she would undertake one in every four of the journeys associated with handover between W and M, a journey acknowledged by the parties as being a round trip of some two hours and some 200 kilometres.

14. The father's principal issues were related to the quality of the time that he would be spending with his children.  Again to his credit, he acknowledged that there were many advantages to the children in the move to M.  He acknowledged that it was important that the mother cope as best she can for the sake of the children.  He acknowledged, having visited the school, that the schooling arrangements proposed by the mother were excellent. 

15. He essentially had no criticism of the move to M, save and except that it meant that two hours of each occasion that he spends with the children will be spent with them in the car.  I accept that quite clearly that restricts the number of activities that he can undertake with the children.  They are as yet still young children, and I accept his evidence also that on the return journey, they spend much of that time sleeping.

16. Any decision I make, even on such a limited issue, has to be guided by Section 60CA of the Act.  It requires me to make a decision which, in my view, represents the children's best interests as the paramount consideration.  I have also had regard to the objects and principles in Section 60B of the Act.

17. Section 60CA ordinarily requires a quite detailed analysis of all of the provisions of Section 60CC.  It is not necessary to do so in this case.  Certainly the primary considerations are of no relevance to my determination and there are only a limited number of the additional considerations which are relevant.  Those relevant considerations include sub-section (b).  However, the evidence is clear that there is an excellent relationship between the children and each of their parents, and it will not be affected by the issues of the travel time or who undertakes that task.

18. I am satisfied, pursuant to Section 60CC sub-paragraph (c), that each of the parents has demonstrated, and will continue to demonstrate, a willingness to facilitate ongoing close relationships between the children and their parents.

19. Sub-section (d) is probably the most relevant and (e) which is as to the likely effect of any changes in the children's circumstances and the practical difficulty and expense of the children spending time with their father.  This should, I think, be coupled with subparagraph (f), which is as to the capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs.  None of the other subsections, in my view, bears any relevance to the decision I must make.

20. Having considered all of those matters and acknowledging an intimation from the wife that in the event that she needed only to undertake one trip in four, she would agree to the times the father spends with the children commencing at 9.30 am on each occasion rather than 10 am, in my view that is an appropriate compromise.  I guess it is not surprising that I would think it is an appropriate compromise because I suggested it.  However, it does give back to the father part of the time that he would have had with the children outside of the confines of his car, but equally recognises the quite significant financial cost, emotional cost and physical cost that the wife bears in supporting her children for the overwhelming proportion of each calendar year.

I certify that the preceding 20 paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Burr

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WYNN & WYNN