SPITERI & WALKER

In the matter of *SPITERI & WALKER*, Foster J considered applications concerning the welfare of two children. The dispute centred on the father's desire for the children to undertake bronchial provocation testing (mannitol testing) to assess their fitness for SCUBA diving and other breathing-assisted waterborne activities, and the mother's opposition to this.

The court was required to determine whether to permit the father to arrange for the children to undergo the specified medical testing, and to make orders regarding the practical arrangements for such testing, including notice to the mother, suspension of existing time orders on testing days, and the mother's ability to attend. Further, the court had to consider whether to restrain the mother from hindering the testing and to determine the conditions under which the father could permit the children to engage in SCUBA diving or similar activities following the test results.

Foster J reasoned that the children's fitness for SCUBA diving was a matter requiring expert medical assessment. The court applied principles relating to the best interests of the child, balancing the father's wish for the children to participate in activities with the need for their safety and well-being. The judge considered the potential risks associated with breathing-assisted waterborne activities and the utility of the proposed testing in mitigating those risks. The court also addressed the mother's concerns by ensuring she would be informed and have the opportunity to observe the testing.

The court made orders dismissing interim applications, granting the father liberty to arrange the mannitol testing, and stipulating detailed conditions for the testing process. These included 14 days' notice to the mother, her liberty to attend, suspension of previous time orders on testing days, and the father's liberty to remove the children from school for testing with prior notification to the schools. The mother was restrained from unreasonably hindering the testing, and the father was ordered to provide the results to Dr B for consideration. The father was granted liberty to engage the children in SCUBA diving or similar activities only upon Dr B confirming, in writing, that the children were not precluded from such activities.