Meredith and Allen

[2013] FamCA 210

FAMILY COURT OF AUSTRALIA

MEREDITH & ALLEN [2013] FamCA 210

FAMILY LAW – CHILDREN – approval for international travel for a severely handicapped child declined

Family Law Act 1975 (Cth)

APPLICANT: Mr Meredith

RESPONDENT: Ms Allen

INDEPENDENT CHILDREN’S LAWYER: Ms Webber

FILE NUMBER: SYC 6886 of 2008

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Remington & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. Applications 13, 14, 15 filed by the father on 21 December 2012 are dismissed.

(other orders not related to these Reasons were made on this day)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meredith & Allen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6886 of 2008

Mr Meredith

Applicant

And

Ms Allen

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the father, by way of a further amended initiating application filed on 21 December 2012, has sought interim orders in the following terms:

   1.1.The father be permitted to travel with the child [B] born … July 1995 from and to [City O, Southeast Asian Country N], for the period of 5 to 13 July 2013. 

   1.2.The necessity for consent of the mother for the issue of a passport for the child be dispensed with. 

   1.3.Subject to the requirements of the Australian Government Department of Foreign Affairs and Trade or any other agency which issues or has the power to issue a passport, a passport be issued by such department or agency to and for [B] before 30 June 2013.

2. The father made a similar application in June 2011 in the Federal Magistrates Court of Australia.  The father’s application was heard and determined only about a week before he wanted to go to City O with the child and her siblings in June 2011. Federal Magistrate Sexton dismissed the father’s application so that she prevented him, on that occasion, from taking the child to City O. The current application by the father substantially reruns the arguments that had been previously canvassed before the learned Federal Magistrate, albeit with some updated evidence, particularly an updated report from Dr C, who is the child’s treating clinical geneticist.

3. It is useful to refer to some of what Sexton FM said on the last occasion in her Reasons that she delivered on 24 June 2011, in particular paragraphs 3, 4, 5, 14, 15, 16, 17, 18 through to 21 and 22 to 25 as follows:

   3.  [The child] suffers from Rett Syndrome, a debilitating degenerative disorder associated with a gene defect.  [Professor D] from [F Hospital], [the child’s] paediatric neurologist, briefly outlines some of the symptoms of this condition in a letter dated 19 April in which she says:

   She has difficult epilepsy and is on a series of medications.  She is severely developmentally delayed.  She has problems associated with Rett Syndrome.  She is markedly limited in mobility.  She is in a chair.  She has scoliosis.  She has gastrointestinal problems.  Rett Syndrome is a progressive disorder associated with a gene defect.

   4.  The Father passionately believes that [the child] has a right to enjoy a luxury holiday in a magnificent venue as much as her three able-bodied siblings, and should not be left at home in her usual mundane routine while her brothers and sister are swimming everyday and enjoying the pleasures of a resort holiday.  The Father sees himself as giving [the child] a voice.  The Father stresses that [the child’s] condition is not an illness and that he can manage the requirements of her daily routine just as well at the [City O] resort as he has always done during her weekends with him each fortnight, during school holiday periods of up to three weeks, on holiday in Cairns earlier this year, and on holiday in the snow fields in New South Wales.

   5.  The Mother opposes [the child] joining her siblings on the proposed holiday to [Country N] because she believes there are too many risks to her health, and because [the child] would suffer from the lengthy travel time involved.  She has no opposition to the other three children travelling.  The Mother says she would not oppose [the child] travelling with the Father on another holiday to Cairns or to Port Douglas or another destination closer to home which does not involve such extensive travel and does not carry such risks.

   14.  It is common ground that [the child] needs to be fed through a tube to her stomach every two and a half hours, a process that presently takes between 40 and 50 minutes each time she is fed.  She sits properly supported much of her waking day in a wheelchair, but needs to be given the chance to stretch out regularly.  [The child] cannot control her bowel or bladder and needs a nappy change approximately five times every 24 hours. She is unable to talk, and must be supervised all the time.  Showering her is difficult given her involuntary arm movements, and her inability to support herself, and in her Mother’s home, she now has a carer to shower her each weekday afternoon.

   15.  In summary, the Father’s argument is as follows:

   a)          He has carefully organised and planned the itinerary for the trip, and has worked out a daily schedule which caters for all [the child’s] special requirements, feeding every two and a half hours, including sterilising her feeding tubes and nappy changing.  When sleeping for extended periods, she could sleep nearby the pool in the pool room.  He plans for her to spend lots of time swimming in the warm water and being massaged, both of which relax her and help with her discomfort from cerebral palsy.

   b)          When travelling to [City O], a six hour bus trip, he says he would manage tube sterilisation by obtaining boiling water from the market restaurants. 

   c)          The Father has checked the facilities on the … plane, has arranged six seats in a row so that when necessary, [the child] can stretch out on the four seats to give her a break from sitting, while the other children can stand elsewhere or sit elsewhere on the aircraft. He has arranged a harness for her seat to keep her upright.  He has arranged seating right in front of the disabled toilet so he can change her with minimal difficulty. He would sterilise her feeding tubes with boiling water which he would obtain from the airline staff, and when at airports, from the food courts.  He will hold up the two or so foot tube when she is not in the wheelchair.  He says because all of [the child’s] food is tinned, the only source of possible contamination is bacteria on the feeding tube. He will wash the tubes in the sink in the disabled toilet. 

   d)          If he, or [the child], had a medical emergency while away in [Country N], there is a doctor at the resort and a private hospital in [City O]. However, if the condition was sufficiently serious, he would fly home with [the child]. 

   e)          He says there is no medical reason to deny [the child] this holiday with her siblings. 

   f)           He says, given that [Professor D] listed [the child’s] medications for the [Country N] authorities, the Court should conclude that [Professor D] supports [the child’s] travel with him to [Country N].

   16.  The Mother’s concerns are set out in Annexure B to the Mother’s affidavit sworn on 23 June 2011 in a letter from [the child’s] usual General Practitioner’s partner, [Dr I], who had access to [the child’s] file.  He says there are concerns as regards:

   …toileting and nappy changing with poor privacy;

   …needing added support because of cramped seating arrangements while in aircraft [sic];

   ….difficulties in feeding – tube fed with difficulty swallowing;

   …expected problems with embarking and disembarking from the aircraft;

   …there are other concerns as regards the reaction of other passengers to her behaviour re her loud speaking voice and uncontrolled movement of her limbs;

   …there will be problems adjusting to the hot humid weather with the risk of skin rashes in [Country N];

   …there is concern whether she can adjust to the changes in air pressure with ascending and descending of the aircraft leaving Sydney and arriving in [City O].

   17.  In affidavit and oral evidence the Mother’s argument is as follows:

   a)         [The child] has never travelled on a plane for more than four hours, which was when the parties travelled to New Zealand as a family before separation. She would be very uncomfortable spending over eight hours sitting upright in a harness.  The harness is not OHS approved, and [the child’s] head will fall forward after a period. The Mother says the harness may end up around her neck area given she tends to slide down when required to sit for lengthy periods, and the Mother believes that would be dangerous. The trip door to door would be 11 to 12 hours, and [the child] would be exhausted and uncomfortable. 

   b)        While the Mother says the Father does the best he can, he is not as particular with hygiene as she is, and there is a higher risk of infection in [Country N], than here. The Father is not as fussy as she is with sterilising the feeding tubes, and there have been times when he has returned tubes to the Mother not properly cleaned. 

   c)         The Mother says the Father is not always aware of [the child’s] discomfort.  At his home, [the child’s] bedding arrangements are not adequate.  Her arms flail and she has uncontrolled clapping, so she throws off her bedding and can get very cold.  He has not put a heater in her room as the Mother has. 

   d)        [The child’s] button can become infected quite easily, and needs to be treated with particular powder or cream to ensure it heals quickly when that occurs.  The Father has not always attended to this adequately when [the child] has been in his care.  When the Father took [the child] to the snow, the Mother says [the child] came back sunburnt with her button area irritated and untreated. 

   e)         [Ms J] has reported to the mother that the Father has changed [the child’s] nappy in an open area without affording her privacy.

   f)         The Mother says [the child] can get hot and sweaty under her arms and legs from uncontrolled clapping and flailing, and in the tropics that could be a problem if not properly monitored. A change in temperature from winter to the tropics may also cause [the child] to contract a cold or flu, which would be difficult to manage. 

   18.  I found the Mother to be direct and frank, and am not persuaded, as the Father would have me find, that she is motivated by anything other than her genuine concern for [the child].  The Mother has been the major hands on carer for [the child], all [the child’s] life, and I am satisfied is well-equipped to assess what [the child] can and cannot manage.

   19.  The Father himself concedes that [the child] faces more risk of infection in [City O] than she does at home. He says e-coli, at the bottom of the feeding tube, is the main risk. I accept his evidence.

   20.  I find that the Father underplays the difficulties he would face managing [the child’s] supervision without respite day and night, particularly given her difficult sleeping pattern at present, which involves 36 hours awake and 18 hours asleep.  I find he underplays the difficulties he would face showering [the child], given there would be no special facilities. He describes problems showering [the child] in his own home, so on her usual visits the Father avoids showering [the child] if possible.

   21.  There is no evidence before me to suggest that the Mother has denied [the child] time with the Father. There is no evidence to suggest that the Mother has denied [the child] the opportunity to go on holidays with her Father and her brothers and sister.  The Mother, for example, supported the trip to Cairns earlier this year. 

   22.  I am satisfied that the Father generally believes that his position in this dispute is in [the child’s] best interests.  He believes that [the child] should not miss out because she has a disability and he has advocated strongly on her behalf.

   23.  The Father does not accept that the Mother is opposing the trip because of [the child’s] medical or other needs.  He has decided that the Mother is trying to punish him and is really only punishing [the child].  He presented as very fixed in this view and unprepared to contemplate the possibility that the Mother’s concerns were genuine and valid.  I accept Mr Hodgson’s submission that there was no real reason why the Father did not look at other options for holiday destinations. I find that the Father’s rigidity on this issue may be the reason the Father never considered taking the children to a beach resort destination in Australia, which the Mother would have approved.

   24.  However, to the Father’s credit, he acknowledges the Mother’s superior knowledge of [the child’s] needs, given she has always been her primary carer, and acknowledges that the Mother is in the best position to know what is best.  I agree that the Mother is the best person to know what is best for [the child]. I accept the Mother’s concerns are valid, and not motivated by anything other than her commitment to [the child’s] welfare.  I find no evidence of the Mother demonstrating vindictiveness in relation to any of the Children to get back at the father. I find she has facilitated the Children’s relationships with the Father since separation.  I find no basis for the Father’s claim that the Mother has chosen to deny [the child] the chance of a wonderful holiday simply to upset him. I have therefore decided that [the child] will not travel to [City O] next week.

   25.  It is unfortunate that a dispute over a holiday should have necessitated this litigation in circumstances where the parties have resolved parenting arrangements without any need to date for court intervention.  Given the Mother now seeks final parenting orders along the lines of the arrangements that have been in place to date, I will direct the parties to attend child dispute conference in this registry before the matter is next before the court. I am hopeful that an opportunity to air some of the issues between them might help the parties refocus their attention on the Children’s need to have their parents “back on the same page”, as the father put it, and working together for the Children’s benefit.  If this is not successful, I will consider requiring the parties to engage in therapy outside the Court to improve their co-parenting relationship.

4. It is clear that on that occasion, the learned Federal Magistrate accepted that the mother’s concerns were valid and were not motivated by anything other than her commitment to the child’s welfare. 

5. I am required, in the context of this application, to have regard to the child’s best interests as my paramount consideration and when I am doing so, I am guided by the matters set out in s 60CC(2) and (3) Family Law Act.

6. The first issue to consider is an argument arising from the case of Rice & Asplund and the cases that have followed it.  The issue is whether or not there is new and additional information that was not before the Federal Magistrate that would allow me to revisit and reconsider the issue.  The father makes a point that based on the orders made by the Federal Magistrate on 25 August 2011, particularly order 5(d), Sexton FM was not attempting, in her orders of 24 June 2011, to close the door on the potential of the child travelling overseas with the father for all time. On 25 August 2011, the Federal Magistrate ordered a report from Dr C and that report does provide the court with additional information.

7. In addition, I have new information from Dr K. Before the mother moved, Dr K was the child’s normal GP and still remains her GP if a serious medical issue arose, although the mother has obtained a new GP in her local area for the purposes of prescription of regular medication.  Dr K wrote a report on 9 December 2010 which, from what I have been told by the father and nobody has said any differently, was not before Sexton FM.  I also have information from the Independent Children's Lawyer by way of hearsay arising from a conversation that she has had with Dr K during today.

8. Given that they are the circumstances then, I do not think it is appropriate to dismiss the father’s application based on the principles in Rice & Asplund and the matter can be looked at afresh.

9. The father’s proposal is that, overall, the child would be travelling for about 12 hours and about nine to nine and a half hours in the air, about two hours prior to the flight, one hour at the end of the flight to get from the airport in Country N to the resort.  He also proposes that he will be with the child at all times that they’re at the resort.

10. On the father’s proposal, he will have some assistance from time to time available to him from the adult child of the marriage, although I do not have any evidence from the eldest child indicating he will be attending and that was a point that was made during submissions.

11. Focusing on the child’s medical conditions, I have a difficulty in that the state of the medical evidence is not exceptionally clear.  It was a feature in the hearing before Sexton FM that the father had not provided any expert medical evidence as to how the child might cope with the difficulties that a nine and a half hour flight presented and I am not in a much better position today than Sexton FM was.  The father annexes to his first affidavit the same letter from F Hospital dated 8 June 2010 that was tendered before Sexton FM.  The author of that letter was Professor D, a paediatric neurologist.

12. The letter sets out medication that the child currently has been prescribed, amongst other things, to control her epilepsy and to help her sleep.  I have already mentioned part of what Sexton FM said in her reasons and at this point, I will just reiterate paragraph 15(f) of those reasons where she says:

    The father’s argument is as follows … (f) He says, given that [Professor D] listed [the child’s] medications for the [Country N] authorities, the court should conclude that [Professor D] supports [the child’s] travel with him to [Country N].

13. That endorsement is not explicit and I am unable to find that it’s even implied.

14. There is some reference made by the father in his affidavit to 450 pages of medical records that I have not seen but I doubt that any of those records would actually help me much in addressing the key issues and that is those identified by the mother as to her concerns arising from the child’s medical condition in respect of the flight.

15. The other matter that the father more substantially relies upon is the medical report that was actually obtained from Dr C as a result of the order made by Sexton FM.  That report is annexure E to the mother’s affidavit sworn on 14 March 2013.  The relevant paragraph is in the following terms:

    I understand in the past that [the child] has travelled within Australia with her family.  If she were to travel with her family in the future, there should be appropriate facilities on aircraft, for vehicle transfers and accommodation to cater for her many needs.  [The child] requires constant supervision and should never be left unattended.  She needs to be transported safely in a wheelchair, and where this is not possible – for example, on an aeroplane – she needs to be safely secured in a seat with adequate support for her trunk and head.

16. The Independent Children's Lawyer attempted in writing to obtain from Dr C a more detailed reaction to the actual proposal of the father. On 27 March, the Independent Children's Lawyer sent Dr C an email that inter alia said:

    [Mr Meredith] has asked the Court to make an order which would permit him to take [the child] and her siblings to [Country N] on a holiday in July.  I’m intending to tender your report, dated 11 January 2013 in the Court and would be grateful if you could let me know whether there is anything which you wish to add to your report by way of updating material or other information. 

1. Dr C replied on 27 March:

   At this stage, there is nothing more for me to add to the report dated 11 January 2013. 

2. Taking what I have just quoted together, I find that overall, Dr C was not expressing an outright disapproval of the father’s proposal, but Dr C’s opinion is not sufficiently detailed for me to be able to know what it was she actually was saying in terms of the preconditions for her to give a positive approval to such an arrangement.  The specialist opinion, therefore, I have in this case is ambivalent and does not really heavily point me in one direction or another.

3. The other pieces of medical evidence that I have which are of some weight, are Dr K’s evidence in relation to his concerns and the evidence from Dr L which I will refer to shortly when I deal with the mother’s concerns about turbulence and aspiration.

4. Turning first to Dr K’s evidence. It is contained in a letter dated 9 December 2010. He says:

   I’m a currently registered specialist GP, and I’ve been [the child’s] local doctor for the last eight years.  [The child] suffers from Rett Syndrome and is epileptic, profoundly intellectually and developmentally disabled, incontinent and fed by gastrotomy tube. 

   It has come to my attention that consideration is being given to taking [the child] to [Country N] for a holiday.  I have several reservations about this proposal.  Firstly, [the child] is immobile in a large wheelchair and is unable to transfer herself to and from a seat.  Secondly, aircraft seating is inappropriate as [the child] has no trunkal stability and needs upper body and lateral support.  Thirdly, toileting facilities on the aircraft are inadequate for [the child’s] needs, and there are also no facilities to change her should the need arise.  Fourthly, the duration of the flight is long, and there are no adequate facilities for tube-feeding [the child] during the flight.  Lastly, [the child] cannot voluntarily equalise her ear pressures during ascent or descent. 

   After due consideration, I think it inadvisable for this severely disabled child to be taken on an international aeroplane flight. 

5. The father told me that the first time he saw that report of December 2010 was when he received the mother’s affidavit on or about 15 March 2013.  A couple of days ago, the father went to see Dr K and I infer attempted to enlist Dr K’s support for his application. He provided Dr K with a copy of his primary affidavit in this application. The father during submissions indicated that he had spoken to Dr K during lunchtime today and Dr K may be available to give evidence at 3pm today.

6. At the conclusion of submissions, I asked the Independent Children's Lawyer to contact Dr K and to ask Dr K what his opinion was in relation to the various issues that had been discussed during the submissions in the anticipation he would then give evidence before me.  I was informed by the Independent Children's Lawyer that Dr K was not able to give evidence this afternoon (despite what the father had indicated) given his surgery commitments which were heavy, but he did indicate to the Independent Children's Lawyer that his position as expressed in his December 2010 report had not changed, and I infer in circumstances where he had read or looked at the father’s material. I was told by the Independent Children's Lawyer that Dr K had told her that he had grave concerns about the father’s proposal. 

7. Turning, then, to the mother’s specific concerns. On 30 January 2013, I made a direction in the following terms:

   11. Within 7 days the mother provide a letter to the father and copy to the Independent Children's Lawyer, indicating the difficulties and the logistic problems she believes exist in relation to [the child] undertaking a 9 hour flight to [City O] and staying in [City O].

8. The mother provided that letter to the father.  Annexure D to the mother’s affidavit of 14 March 2013 contains a list of 11 concerns that the mother had to the child travelling to City O as follows:

   1.  Transfers to and from the aircraft by wheelchair provided at the airport do not cater for [the child’s] seating needs.

   2.  The time of travel being 9 hours in flight and 3 hours of embarking and disembarking is too long for [the child] to travel, not allowing for her needs to be met and making it uncomfortable and painful for [the child] to endure.

   3.  Transfers to and from the hotels and outings by vehicle, do not cater for [the child’s] safety needs.

   4.  [The child] is not capable of adjusting to air pressure in the plane.

   5.  The seating arrangements are not suitable to insure [the child’s] safety and comfort on the plane.

   6.  What precautions will you take to insure that [the child] does not aspirate into her lungs whilst seated on the plan?

   7.  The toileting facilities on the plane are not suitable for [the child’s] needs.

   8.  The tourist sights in [Country N] do not facilitate for people in wheelchairs.

   9.  The weather conditions in [Country N] would exasperate [sic] problems such as skin rashes, sunburn, infection and other illnesses found in under developed countries.

   10.  The comfort and/or perseverance of other passengers.

   11.  [The child] would not know the difference between spending time by the pool in Cairns or [Country N].  Why not take her somewhere within Australia?

9. The father has responded to those concerns in a table that is in paragraph 12 of his affidavit sworn on 20 February 2013. I will deal with some of the mother’s specific objections.

10. The first is the flight time.  The father has attempted to ameliorate discomfort to the child by proposing that he would purchase two business class tickets if the child joined him to fly to Country N.  The Independent Children's Lawyer has tendered photographs from the airline website of business class accommodation.  Those photographs indicate that the business class seat is not a “flatbed” as described by the father.  It is, in fact, a big reclining chair.

11. Whilst there’s no doubt that it is better style of seating than one would get on an economy fare, it does not appear on the face of it that that recliner would become absolutely horizontal.  The mother raises the issue as to how the father will be able to afford about $5000 for these seats, and based on the statement of financial circumstances I have, it is not clear to me how it will be funded.  Assuming the seat is provided, it does address some of the concerns the mother has raised in relation to the child being able to stretch out during the flight.  This type of seating would allow her to stretch out, even though it may not allow her to lie down flat. 

12. The next issue the mother raises is air pressure.  I accept Dr K’s evidence that the child cannot voluntarily equalise her ear pressure during ascent or descent.  I accept the mother’s evidence that the child is severely intellectually impaired and she would not understand what to do when air pressure became too much to handle.  The evidence is the child does not cry or complain but she can suffer pain.  The father says he knows when she is in pain but I am concerned that if she is unable to equalise her ear pressure, she could be in pain for a long period of time during the proposed flight. In relation to the child’s prior experience on an aeroplane, I am a little uncertain as to what the situation has been about the frequency in relation to the child going to Cairns.  The father refers to one trip and then refers to it being on an annual basis.  The mother, in her evidence, said that she, on one occasion, reluctantly agreed to allow the child to fly to Cairns. When younger, the child flew on a trip to and from New Zealand. The father, however, does not draw any distinction between a flight which is around three hours, perhaps a little less, and a flight which is nine hours or perhaps a little more, if ear pressure problems occur on ascent.  Given what Dr K has said, I must find the mother has some reasonable concerns in relation to the issue of air pressure over such a long flight.

13. The next issue that the mother raises is concerns she has about what she asserts is the child’s poor blood circulation and that that creating a danger in relation to thrombosis over a nine hour flight.  The medical evidence that I have seen does not say that the child has poor blood circulation.  It says she is severely restricted in her movements but that is a different matter.

14. The mother does seem to concede that if the father did purchase the business seat, that would go some way to ameliorating this risk and the father makes the point that the mother, in another part of her affidavit, expresses concerns about the effect on other passengers of the child’s loud and enthusiastic movement.  Although the mother raises thrombosis as a concern, I do not find that it is something that I have to particularly worry about.

15. The next issue that the mother raises arises from her concern that turbulence during an international flight will increase the risk of the child having difficulties with aspiration during the flight.  The child has a condition which is complicated by reflux.  Her stomach has been separated from her oesophagus.  The mother says that if the child is sleeping at the time of the flight and is not upright, she could experience trouble with saliva building up, causing her gagging, discomfort and vomiting.

16. Annexed to the mother’s affidavit is Dr L’s report of 14 November 2011.  Dr L is a paediatric surgeon.  Dr L says this in the second-last paragraph on the first page of his report of 14 November 2011:

    Because of her continual saliva build up and difficulty swallowing, when she is sitting upright being bounced around in a car or vehicle, she has incredible trouble with gagging, discomfort and vomiting, as she attempts to bring up the saliva, she can’t swallow properly.  This is exacerbated by the length of time it takes for [the child] to get to school on the bus, which can take up to 80 minutes, depending on traffic.  This is far too long for [the child] to endure and has/could have significant medical implications if she aspirates her saliva into her lungs during the trip.

17. The father, in his affidavit, addresses the mother’s concern by simply saying that he would be there and he would take the same precautions to ensure the child did not aspirate into her lungs as the precautions that he would take as if she was sitting at home.  That response seems to me to ignore the differences between the child sitting in the still of her home as compared to the reasonable probability that in a nine hour international flight, turbulence will be experienced.

18. I understand the father is saying that he does not agree with Dr L’s opinion and I think he implied that Dr L may have been writing the letter in order to obtain a benefit for [the child] and thereby embellishing the risk in order to obtain that benefit but I can’t be as certain as the father is about that.

19. I accept the father will be there and the father would do everything that he possibly could to make sure that nothing bad happened to the child if she suffered this difficulty through a period of sustained turbulence but without medical opinion, I can’t assess how risky that possibility might be for the child.  I am mindful that there have been the Cairns airflights and the New Zealand airflights where there has not been a problem but they have been far shorter flights.

20. The next issue of controversy was the ability for the child to toilet during the flight.  It was common ground that the child would need her nappy changed during the time she was on the plane.  There is a dispute between the parents as to whether or not the disabled toilets in the A330 provide a facility which would allow an adult to be laid down in a way that would enable the adult’s nappy to be changed.

21. The mother has given evidence that she has examined these toilets on an A330 and has concluded that they do not provide such a facility.  The father has given evidence that they do.  I cannot say which one is accurate.  Relying on the objective evidence, the father has attached to his affidavit a schematic diagram of these toilets.  The mother has attached to her affidavit a 3D representation of these toilets.

22. Looking at that second photograph, which is in annexure L to the mother’s affidavit, I am not really confident that these toilets do provide adequate facility for the child to be laid down flat in order to have her nappy changed.  The father himself concedes that these toilets are not the same as toilets at Westfields or McDonalds.  The father also says that these planes have spaces for staff to sleep, which are curtained off, but there is no indication in the evidence that those spaces would be made available for this purpose.

23. The next concern for the child in relation to the flight relates to seat positioning.  The business class seats themselves, although they are padded, are not adequate to accommodate the child.  She will need a harness and she will need to have her upper body given support.  She needs lateral support.  She needs trunkal stability.  Her scoliosis means she needs to be well supported while she is in a seated position.  I accept the child is unable to sit centred and upright in a seat unaided without a harness.

24. It is clear from the material that I have got, that the airline does not allow individual carers to provide special upper body restraints.  There is a disagreement between the parents as to whether or not the restraints that would be provided by the airline would be adequate for the child’s needs.  Although I cannot definitively decide that issue, on the material that I have been given, I accept the mother has raised significant concerns about whether or not adequate upper body support can be provided to the child during the flight.

25. I have no particular concerns about the father being able to feed the child on the flight and to sterilise tubing using boiling water, which is readily available through an attendant on an international flight.

26. The mother has raised as an issue the reaction of passengers on the flight.  I think that is a matter of little concern.  If the child does stay awake through the flight, although she may be very loud and disruptive, it is not something that is likely to embarrass her and that is really the focus of my interest in this case, even if it did seriously inconvenience passengers who paid a reasonable amount of money for a flight to City O.

27. In relation to transportation from the airport to the resort in City O, the father concedes that City O does not have the same standards as Australia does in terms of providing wheelchair transportation.  He does provide a document which indicates that there is transportation which is wheelchair friendly without actually detailing what that might mean.

28. In his most recent affidavit, he says that if need be, an ambulance can be obtained to effect the transportation.  There is no evidence, however, that the father has locked those arrangements in place.  Although it is not a matter upon which I place great weight, I actually do not have any way of firmly finding that this transportation can be affected.

29. It is the father’s position that in relation to sightseeing and outings, the child would stay in the resort at all times with him and the other three children would go out from the resort from time to time.  The father says that given that the other children have been to City O on two previous occasions and he has been out and about with them on those occasions, then that is not a matter of any great moment.

30. The mother raises issues arising from the Country N weather conditions.  The mother is concerned that the child will find it very uncomfortable in the humid conditions and that those conditions will make the child more susceptible to skin rashes, sunburn, infections to the gastronomy button and dehydration.  I am generally comfortable with the fact that the father is well versed in attending to all of those types of issues and can adequately manage them. 

31. The other issue that I raised on the last occasion and has been dealt with in the father’s affidavit is what happens in case of an emergency, if the child fell ill whilst in City O.  At exhibit F to the father’s affidavit, he attaches correspondence from M Hospital and that information indicates that the hospital is a Joint Commission International accredited hospital.  That’s an accreditation based on American hospital standards and equivalent to Australian healthcare standards.  I accept that it has a large paediatric department offering 24 hour emergency paediatric services and is able to adequately assess, manage and provide treatment for Rett syndrome.

32. The mother, however, still has concerns that this is a hospital in, I think what she describes, as an undeveloped country.  The Independent Children's Lawyer makes what I think is a strong point and that is that the father, in his evidence, has not provided any indication as to how he would pay for the services of the hospital, should the need arise, and has not indicated how he would obtain travel insurance to cover the costs of any such treatment and the cost of repatriation of the child to Australia, should she fall ill.

33. In conclusion, I should say, as I think the Federal Magistrate said, that I have got no doubt that both parents approach this controversy from the passionate view that they are doing what is in the child’s best interests.  The father, from his side, has a very strong, committed view that although the child is severely disabled, she should have the same opportunities as the other children.  I have equally got no doubt that the mother is not opposing the father’s position out of any vindictive motivation.  In fact, as she points out in her affidavit, if she allowed the child to go, it would give her some respite time with her partner in Australia.

34. Taking into account all that I have discussed, I conclude that the benefits for the child which exist in the father’s proposal for an interactive, fun holiday at a luxury resort are outweighed by the risks that have been articulated and have not been dispelled by expert medical evidence. I consequently dismiss the father’s application to be allowed to take the child to City O.

I certify that the preceding fifty (50) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 28 March 2013.

Associate: 

Date:  3.4.2012