O’Connor and Islington

[2011] FamCA 763

FAMILY COURT OF AUSTRALIA

O’CONNOR & ISLINGTON [2011] FamCA 763

FAMILY LAW – CHILDREN – Discrete question whether child 8 years should be accompanied by father or another adult on flights – Child’s best interests – Ordered that such occur whenever possible

APPLICANT: Mr O’Connor

RESPONDENT: Ms Islington

FILE NUMBER: MLC 4701 of 2009

DATE DELIVERED: 12 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: O’Reilly J

HEARING DATE: 12 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Ms Serafini
Serafini & Hill Solicitors

COUNSEL FOR THE RESPONDENT: Mr Harris

SOLICITOR FOR THE RESPONDENT:

Mr Fenton

Stephen James Fenton Pty

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan
Victoria Legal Aid

Orders

IT IS ORDERED BY CONSENT

1. In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

1. The original minute of orders signed by the parties be placed and kept on the Court file.

AND IT IS FURTHER ORDERED

1. In relation to the child B (the child), and paragraphs 4(a)-(c), 6 and 7 of Annexure A, until the child turns 9 years on … 2013:

   a.whenever possible the father at his cost ensure that the child be accompanied on the flights by himself or an adult known to the child, and where not possible ensure that her flight arrangements comply with the F Airlines unaccompanied child protocol

   b.the parties do all things necessary to facilitate the protocol.

AND IT IS FURTHER ORDERED

1. All other applications concerning the child are dismissed.

2. The independent children’s lawyer is discharged.

3. Pursuant to s 65DA(2) and S62B, the particulars of the obligations these orders create and the particulars of the consequences that follow if a person contravenes these orders and details of who can assist parties adjusted to and comply with an order are set out in the Fact Sheet attached to these orders.

AND IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to brief Senior and Junior Counsel.

Annexure A

1. That the father and mother have equal shared parental responsibility for the children of the marriage C  born in 1995 (“C”) and the child B (“B”) born in 2004 (“the Children”).

2. That the children live with the mother.

3. That the time spent between C and the father be as agreed between the parties and with C.

4. That the child spend time with the father as follows:

   (a)for the second half of each school holiday period including the long summer school holidays commencing 2013; arrangements for the long school holidays for 2011-2012 having already been agreed  by the parties with the father to return the child to the mother in timely manner prior to 12 noon at  agreed embarkation point for vacation cruise prior to Cruise ship departure on 9 January 2012.  For the purpose of calculating one half of the school holidays, the first and last day of term shall not be taken into account;

   (b)with 60 days notice to the mother, the whole of one school holiday period excluding the long summer school holidays;

   (c)in 2012 and each alternate year thereafter from 5.00 pm 24^th December to 1.00 pm on 26^th December;

   (d)with at least 14 days notice to the mother, one weekend in each calendar month during school term, such weekends to include the weekend of fathers day and the weekend closest to the father’s birthday and to commence at conclusion of school on Friday and to conclude at commencement of school on the Monday such time to be exercised when the father is in Melbourne;

   (e)with at least 7 days notice to the mother:

   i.on the father’s birthday from 5.00pm until 9.00pm;

   ii.on the child’s birthday:

   I.if not a school day for 4 hours to be agreed and failing agreement from 4.00pm to 8.00pm; and

   II.if a school day from 6.00p.m to 8.30pm.

5. In relation to paragraphs 4(d)and 4(e)the father will be responsible for picking up the child from school . The father may nominate a relative or friend known to the child to collect or drop off the child on his behalf. 

6. The parties agree upon the time the child spends in D Town and the father pay the return airfare for each school holiday period in which the child spends time with the father in D Town and once booked the father shall provide details of the flights to the mother. Should  the mother change the flight details then the cost of  such change shall be borne by her.

7. That the father shall be responsible for collection and return of the child from and to the airport at the E Town. The mother shall be responsible for collection and return of the child from and to the airport in Melbourne.

8. Each party, when the child is not to be in his/her respective care for  the period of a 7 days may communicate by telephone or Skype with the child twice in that period, provided the child or mother have access to a computer, with such communication to be  initiated between 5.30pm and 7.00pm by the party seeking communication. 

9. Each party is to ensure that any telephone conversation between the child and the   other party is to be conducted in private to the extent possible and each party is to ensure that any conversation referred to herein is not undertaken on loudspeaker.

10. Each party will encourage the child to communicate with the other party by telephone when the other party calls and facilitate any reasonable wish of the child to telephone the other party and initiate the call on behalf of the child.

11. In the event that the father cannot exercise time with the child, he shall notify the mother by SMS text message or by email in advance as soon as practicable.

12. The father will be entitled to communicate by email and/or postal mail with the children.

13. Each party will notify the other within 7 days of any proposed change to their respective contact and address details.

14. All communication between the mother and father shall be in writing per SMS text message or email save in the case of an emergency. 

15. Each party shall immediately advise the other in the event that the children require urgent medical treatment whilst in their care.

16. That each party keep the other informed as soon as practicble by SMS text message or email of:

    (a)any illness or injury suffered by the children (not including minor ailments or injury); and

    (b)the name, address and telephone number of any health professional treating either of them.

17. That each party authorise any health professional treating the children whilst in their care to provide information to the other.

18. That the father be consulted in respect of school arrangements for the child and the mother do all such acts and things to ensure the school at which the child attends forwards to the father at his expense all school reports and other communications and the father be at liberty to attend such functions at which parents normally attend.

IT IS NOTED that publication of this judgment under the pseudonym O’Connor & Islington (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4701 of 2009

Mr O’Connor

Applicant

And

Ms Islington

Respondent

REASONS FOR JUDGMENT

1. The parties have been able to reach final consent parenting orders in relation to C and B save in one respect in relation to B. 

2. Paragraph 7 of the proposed consent orders as amended during negotiations provides:

   7.     The father shall be responsible for collection and return of the child from and to the airport at the [E Town].  The mother shall be responsible for collection and return of the child from and to the airport in Melbourne. 

3. The question in issue is whether in addition to being responsible for collection and delivery of the child from and to the airport at the E Town the father personally accompany the child on the flights or alternatively ensure another adult person does.

4. The mother seeks this order. The father resists it.

5. The cost for the father or another adult person to accompany the child on the flights would be about $4000 per year (eight round trips of about $250 for the father or accompanying adult), plus the child’s airfare costs. 

6. Plainly the mother’s proposal is that the father pay for all costs of the accompaniment.  The children’s costs and child support already that he pays is as set out in paragraph 115 of his trial affidavit, 3 June 2011, showing considerable expenditure commitment. 

7. It is appropriate, I think, to determine the issues discretely, first whether in the child’s best interests the father or another adult should accompany her, and secondly if I should determine that that should be so, the incidence of payment of the costs of that occurring.

8. The mother and the father gave brief oral evidence today.

9. The mother said in her evidence that the incident described in paragraph 49 of her trial affidavit filed 24 June 2011, namely of the child travelling unaccompanied on an air flight, needing to use the toilet, not being confident of using it, unable to ask someone, wetting herself and being embarrassed, such that she “sat in the wet”, occurred “a long time ago”.  The mother was asked specifically whether this incident was 2011 or 2010, to which she answered in the negative, saying that it was probably about 2009 when the child was about five years.  Saliently, however, the mother said, trying to recall and shaking her head “It was so long ago now” those words certainly indicating that this was not a recent occasion.

10. There was no evidence by the mother of any other such troubling incident concerning the child on an aeroplane, and it would appear that if there had been specific incidents troubling the child she may have been likely to tell the mother about them, not certainly, but may have been likely. 

11. I am satisfied that the incident that troubled the mother happened, in the mother’s own words, “so long ago”; and that on the evidence at this stage so far as I can assess the matter is probably not likely to recur particularly as the evidence has included that the child has travelled about four times per year return since then, and that she has travelled unaccompanied on at least 10 occasions, that is, unaccompanied by the father or an adult known to her.

12. The second important piece of evidence of the mother, however, was that the child has been quite specific to her that she does not want to fly alone, and that she has become more vocal about this.  Initially, I considered that there was some confusion in the mother’s evidence as to whether the child was becoming more vocal that she didn’t want to fly at all to see the father, or whether she didn’t want to fly alone, and I am satisfied that the effect of her evidence is that the child has been telling her quite specifically, with increasing vocality, that she does not want to fly alone, particularly as she has had experience of this in recent times.  For the child to report that to the mother indicates, I think, that there must be some measure of discomfort in it for the child, although that has not been specified by her to the mother.

13. The mother said that she herself would have been afraid to fly at seven years.  Now, possibly, but without deciding the matter, the mother is imparting her own fears to the child.  There certainly seems no evidence that the child has a fear of flying as such, but has expressed a wish not to travel alone. 

14. The father gave evidence of the F Airlines unaccompanied child travel protocol. He explained that only F Airlines flies to E Town, and that F Airlines has the protocol mentioned.  He described it in detail in relation to unaccompanied children, apparently up to no more than six at a time per flight, being in a secure fashion accompanied on to and off the flight from the hand of one identified parent or authorised person to the hand of the other identified parent or authorised person.

15. Curiously, the mother said that she had never heard of such a protocol, and I had the impression that her own fears, which she may be imparting to the child, are somewhat allayed by knowing of the existence of the protocol. 

16. The father also said in his evidence that the child had said to him, and made it clear to him, that she prefers that he fly with her, but that she would rather fly alone to spend time with him than to not fly at all to spend holiday time with him.

17. In determining this issue, I am obliged to consider the child’s best interests. 

18. As seven years, turning eight years in February 2012, there is no reason to require that an adult travel with her by reason of safety issues, and in this regard I am satisfied that the F Airlines protocol described by the father meets the child’s physical safety requirements.  There is no evidence by any psychologist or other expert that the child will suffer emotional or psychological harm if she travels without the father, or his adult nominee. 

19. The matter, therefore, comes down to the child’s expressed wishes and the mother’s concerns.  The child’s wish expressed to the mother is that she does not want to fly alone.  The child’s wish expressed to the father, as I have stated, is that she prefers not to fly alone, but that she would rather fly alone than miss out on spending the holiday time with the father. She is, however, only seven years. Her expressed wishes are thus quite understandable. 

20. That does not mean, however, that her best interests require the order the mother seeks.  In the absence of expert evidence that the child would suffer emotional or psychological harm if the mandatory order the mother seeks is not granted, and given that the child’s physical safety is not in issue, in my view it is not in her best interests to make the mandatory order, or, put another way, that her best interests do not require such.

21. That however is not the end of the matter. 

22. In my own deliberation of the matter I had considered mentioning to the parties the possibility of a non-mandatory order, being an order that the father use his best endeavours to accompany the child, at least on some flights each year, my perception of the evidence being that it is not so much that the child wants to not travel alone, but that she wants her father or mother to travel with her.

23. After resumption after lunch, and hearing the submissions, Ms Benjamin of Counsel, for the father, sensibly has proposed something along those lines, which is as follows, that whenever possible the child be accompanied by the father or another adult known to the child and when not possible that the father ensure that her flight arrangements comply with the F Airlines unaccompanied child protocol.

24. It seems to me, on the basis of the evidence that I have mentioned, that such certainly is in the child’s best interests, the balance being that whilst the accompaniment for the child is not essential in her best interests, it is desirable in her best interests that her wishes be met on at least some occasions and in particular by the father accompanying her rather than another adult person. 

25. In my view that order proposed is in the child’s best interests and I will make it. 

26. I appreciate the time constraints on the father by his profession, and already heavy financial commitment to the children, and new wife, and from where I sit a new child on the way, so there is heavy commitment indeed, but the child is at a sensitive age at which she needs to be assured that her father has time for her, and if that is lost it would be difficult to be regained.

27. It seems to me therefore that it is not any aspect of coercion that is necessary, but responsibility in the parenting role, and I have determined already that coercion in this regard, in my view, is not in her best interests.

28. The father ultimately did not suggest other than that he pay the additional cost, nor that the mother contribute.

29. The next matter that arose is that of compliance with the protocol.  I would propose to add to the orders that both parties do all things necessary to facilitate the protocol.

30. The third aspect of the argument involved the period of time for which the order should run.  The father proposed, by Ms Benjamin, that such should be for some six to 12 months.  Ms Smith, Counsel for the independent children’s lawyer, nominated the beginning of February 2013, when the child turns nine years, as the order that she would urge, having regard to the child’s maturity, and the distancing of these proceedings.  Mr Harris, Counsel for the mother, submitted that the order continue until the end of 2014, on the basis that the child will turn 11 eleven years and commence secondary school at the beginning of 2015. 

31. Having considered these matters carefully, in particular, the child’s role in her family life with the mother’s family, and her father’s soon to be family, in my view the independent children lawyer’s submission is sound, and in the child’s best interests. It affords a basis for the child to feel that she has been heard by the Court in seeking to not travel alone, at least at present; would afford comfort to the mother; and is sound also having regard to the child’s level of maturity and the distancing of the proceedings.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 12 September 2011.

Associate: 

Date:              15 September 2011