Wilde and Wilde (No.2)
[2020] FCCA 944
•29 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILDE & WILDE (No.2) | [2020] FCCA 944 |
| Catchwords: FAMILY LAW – Parenting – final hearing – discrete issue – international travel – issue of when the child be permitted to travel as an unaccompanied minor –conditions on non-direct flights – where parties consent to certain third parties accompanying the child on air travel – positive obligation to advise third parties of specific responsibilities – conditions on child’s use of public bathrooms while travelling – history of sexual abuse of the child – whether relevant airline need be informed child has ‘special needs’ or a diagnosis of ‘Autism Spectrum Disorder’ – scope of child’s therapy/counselling – restriction on unaccompanied travel in the event child is suspended from school. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 64B |
| Cases cited: Wilde & Wilde [2015] FamCA 1118 |
| Applicant: | MS WILDE |
| Respondent: | MR WILDE |
| File Number: | SYC 1007 of 2012 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 20 and 21 November 2018 |
| Date of Last Submission: | 21 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reynolds |
| Solicitors for the Applicant: | Lukes Law |
| Solicitors for the Respondent: | Watson & Watson |
ORDERS
THE COURT ORDERS THAT:
Paragraph 24 of the Orders made 27 September 2012 be discharged.
The parties cause B born in 2007 (“B” or “the child”) to travel internationally to spend time with the father as agreed and, failing agreement, in accordance with these Orders.
The parties (and in particular the father) cause any flights to the father’s country of residence or other overseas destination, where possible, to be direct flights and further, that where possible, such flights be scheduled during daytime hours.
Subject to paragraph 6 herein, the parties (and in particular the father) cause B to be accompanied on all air travel during the time he spends with his father by one of the following persons;
(a)the father;
(b)the paternal grandparents;
(c)the father’s wife Ms D;
(d)B’s siblings G, H, and J; and
(e)such other person as agreed in writing.
In the event that the father arranges for a person to accompany B during air travel pursuant to paragraph 4 herein, then the following applies:
(a)the father advise the accompanying person that they are required to accompany B into any public bathroom if B needs to use the toilet and stay with B (but not in the cubicle) until he has finished in the bathroom; and
(b)if the person accompanying B is a female they are to accompany B to outside the male public bathroom.
As from the end of Term 4 2020 and subject to these Orders and the Orders made 27 September 2012, the parties (and in particular the father) cause B to travel as an unaccompanied minor (or is to register the child as a ‘young passenger’ or equivalent following the child’s 16th birthday if he is travelling unaccompanied), provided that:
(a)the child has undertaken counselling as recommended by Dr A (including understanding personal boundaries in terms of ‘private parts’, and protective behaviours, and had therapy in regard to readiness to travel as an unaccompanied minor);
(b)the first flight that B takes as an unaccompanied minor is the return trip from Country E to Sydney;
(c)B has not had had any periods of suspension from school within the previous 12 months;
(d)the parties (and in particular the father) has advised the airline carrier that B has special needs; and
(e)when travelling as an unaccompanied minor, the parties (and in particular the father) has requested the airline carrier provide public toilet accompaniment.
In the event that there are no direct flights and the available flight will require a stop-over then the father collect B at the end of the first leg of the flight from the stop-over point and then accompany him on the further flight, and then return the child by direct flight if available or if no direct flight is available the father accompany B until the final leg of the flight back to Australia.
During the period of time that B spends with the father, the father is to ensure that the child is always supervised by either himself or his current partner, Ms D, except if B is enrolled in a vacation care program that he is to attend with Ms D’s daughter, K.
For the purposes of paragraph 6(a) herein:
(a)the mother be responsible for arranging the relevant counselling and/or therapy for B;
(b)the mother advise the father of the name and contact details of the relevant counsellor and/or therapist for B; and
(c)the father be at liberty to contact any relevant counsellor and/or therapist engaged by the mother for B.
The mother ensure that B continues to engage with a psychologist on a regular basis in regard to his diagnosis of Autism Spectrum Disorder (ASD) and also the other areas outlined in the recommendations of Dr A in his Report dated 20 September 2017, and that each parent meet with the psychologist in a face-to-face meeting at least once, plus other times via Skype (or equivalent) as requested by the psychologist to discuss B’s development and wellbeing, and more specifically the preparation of B for unaccompanied air travel.
The parties be at liberty to provide a copy of these Orders to the relevant airline for the purposes of international travel arrangements.
Leave be granted for these Orders, and the Expert Reports of Dr A dated 20 September 2017 and 31 October 2018 to be released to any therapist treating B, together with a copy of the Order made on 25 September 2017 by Judge Altobelli releasing the report and the limitations on the use and dissemination of the report.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)These Orders were made by the Court following a final hearing in the Wollongong Registry on 21 and 22 November 2018.
(B)These Orders should be read in conjunction with the remaining final orders made by consent on 27 September 2012 (so far as they are consistent with these Orders and the Orders of Justice Watts made on 30 November 2015).
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wilde & Wilde (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1007 of 2012
| MS WILDE |
Applicant
And
| MR WILDE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between MS WILDE (“the mother”) and MR WILDE (“the father”).
The relevant child of the relationship is B, born in 2007 (“B” or “the child”).
This final decision only concerns the following discrete issues relevant to international travel by B in order to spend time with the father (who now lives in City L, Country E)
·Firstly, whether B should commence travelling as an unaccompanied minor on international flights to the father’s country of residence from 6 November 2020 (as the father seeks) or from 1 January 2021 (as the mother seeks);
·Secondly, subject to the Court’s determination as to when B will commence travelling as an unaccompanied minor on international flights, and upon noting that the parties have agreed that, where possible, B should travel on direct flights scheduled during daylight hours, in the event that B is required to travel on a non-direct international flight from/to Australia:
oWhether the father should be required to collect the child at the end of the first flight out of Australia and thereafter travel with the child on any further flight and also be required to travel with the child on the return flight save for the final flight back to Australia (the “non-direct flight requirement”) (as the mother seeks); or
oWhether the non-direct flight requirement should only apply if there is a change of airline (and not where there is a transit stop with the same airline) (as the father seeks); and/or
oWhether the non-direct flight requirement should only apply up until B turns 15 years of age (as the father seeks).
·Thirdly, having noted that the parties have agreed to certain nominated third parties being able to accompany B on any international travel required for the child to spend time with the father, whether the father should be under a positive obligation to advise the relevant third party that he is required to accompany the child to any public bathroom (although if the third party is a female she may wait outside the toilet) (as the mother seeks) or whether the father may advise the relevant third party that they should accompany B to the public bathroom (but not inside the toilet cubicle) (as the father seeks);
·Fourthly, upon noting that the parties have agreed that B will undertake counselling as recommended by the single expert, Dr A, whether that counselling should include “understanding personal boundaries in terms of ‘private parts’” (as the mother seeks) or not;
·Fifthly, whether the mother should be under an obligation to keep the father advised as to what therapy has been arranged for B (as the father seeks) or not;
·Sixthly, whether any unaccompanied international travel should be conditional on B not having any periods of suspension from school within the previous 12 months (as the mother seeks) or not; and
·Seventhly, upon noting that the parties have agreed that the relevant airline carrier should be advised about B’s circumstances, whether the parent organising the travel should inform the airline that B has “a diagnosis of ADHD and Autism Spectrum Disorder” (as the mother seeks) or that B has “special needs” (as the father seeks).
Details of the precise orders proposed by each party are extracted later in these reasons.
At the final hearing the mother was legally represented by Ms Reynolds of counsel, and the father was legally represented by his solicitor, Mr Grant.
Unless otherwise stated, any statutory references I make in these reasons are to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The mother was born in 1966 and is currently aged 53 years of age. The father was born in 1966 and is also currently aged 53 years.
The parties commenced cohabitation in 2003 and were married in 2005.
The child of the relationship, B was born in 2007. B is currently aged 12.
The parties separated in January 2011 and their divorce became final on 5 March 2016.[1]
[1] Divorce Order made 4 February 2016 by Deputy Registrar Ryan.
The Father has re-married and lives in Country E. with Ms D and his partner’s daughter K, whom is of similar age to B The mother has not re-partnered.
Procedural history
This matter has had a long history within this Court and the Family Court of Australia.
The father initially filed an Initiating Application on 23 February 2012 in the Family Court of Australia seeking parenting orders. The mother filed a Response on 23 March 2012 including orders sought in respect to parenting and property. Final parenting and property orders were made by consent on 27 September 2012 (“the consent orders”).
The parenting orders provided for the mother and father to have equal shared parental responsibility for B and for B to live with the mother. Further relevant orders included:
22. That whilstever the Husband resides outside of Australia, B spend time with the Husband as follows:-
22.2 After B attains the age of 8 years in 2015:
a. For up to ten weekends per annum whenever the Husband is in Sydney at such times as agreed between the parties or if not agreed from 6pm Friday until before school on Monday;
b. For one half of the school holiday periods at the end of Terms 1, 2 and 3, being the first half in even numbered years and the second half in odd numbered years within or outside Australia;
c. For one half of the Christmas school holidays in 2015 at such times as agreed between the parties or if not agreed for the second half (2015 being an odd numbered year) within or outside Australia provided that:
i. if the Husband proposes to travel overseas with B during that holiday period, the period of overseas travel be limited to no more than 14 days including travel time and the remaining time be spent in Sydney; and
ii. if the Husband proposes to spend the holiday time in Sydney, such time may be taken in one continuous block provided that B spend time with the Wife once a week for 2-3 hours during that block period.
d. For one half of the Christmas school holiday periods from 2016 onwards at such times as agreed between the parties or if not agreed, for the first half in even numbered years and the second half in odd numbered years, and such time may be taken in one continuous block; and
e. At such other times as may be agreed between the parties.
24. That for the purposes of air travel pursuant to these Orders:
a. the Husband accompany B on all overseas air travel between the time B attains the age of 8 years until he attains the age of 10 years.
b. B be permitted to travel overseas accompanied by such other responsible adult agreed between the parties or as an unaccompanied minor (subject to airline regulations) from the age of 10 years.
c. B be permitted to travel on domestic flights within Australia accompanied by such other responsible adult agreed between the parties or as an unaccompanied minor from the age of 8 years.
25. That the Husband shall not be permitted to travel with B to any overseas country designated by the Department of Foreign Affairs and Trade at a Level 3 or 4 travel advisory except as otherwise agreed by the wife.
An Application – Contravention was filed by the father on 4 September 2015 and proceeded for hearing before His Honour Justice Watts in the Family Court on 30 November 2015. In respect of the alleged contravention, Watts J found that the mother without a reasonable excuse had contravened paragraph 22.2(b) of the consent orders and subsequently ordered the mother to enter into a bond for the sum of $5,500.[2]
[2] Wilde & Wilde [2015] FamCA 1118
Furthermore Watts J made the following additional orders:
1. Pursuant to s 70NBA Family Law Act and pending further order:
1.1 By consent, neither parent bring the child B, born in 2007 (the child), into contact in any way whatsoever with Mr C.
1.2 During the time that the child spends with his father, the father is to ensure that he accompanies the child into any public bathroom if the child needs to use the toilet, and stays with the child, but not in the cubicle, until he has finished in the bathroom.
1.3 During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself of his current partner, Ms D.
1.4 Both parties attend a post-separation parenting program on the condition that it is possible for the father to undertake that course via electronic means from Country E. If that can’t be organised, then I’m not requiring the mother to attend that program.
2. The father’s application for costs be dismissed.
3. I note the mother will withdraw her applications for interim orders that are listed before the Federal Circuit Court in Wollongong on 8 December 2015.
4. I note that pursuant to the orders that were made in 2012, there is an agreement between the parties that in relation to the December 2015/January 2016 school holidays, the child will spend time with his father between 1 January 2016 and 15 January 2016 with pick up Sydney Airport and return to Country F Airport.
5. By consent, the orders made 27 September 2012 be varied by adding to order 22(d) the following:
“and the husband will give the mother three months written notice of when and where the child will be spending time with the husband during this period and in the event the husband proposes that the child travel with him overseas than to the place of the husband’s residence overseas the husband provide to the wife no later than three months prior to the proposed travel, details of the itinerary for such travel including flight details and the address, telephone and other contact details of all accommodation in which the child will be staying during the period of travel.”
6. By consent, the orders made 27 September 2012 be varied by adding to the beginning of order 27 the words, “Subject to order 22(d)”.
The current proceedings before the Court today were commenced by the mother on 19 October 2015 after the filing of an application seeking to vary the existing consent orders that relate to unaccompanied travel. The Application was opposed by the father by way of his Response filed 4 December 2012. The Rice & Asplund hearing proceeded before Judge Altobelli on 7 April 2016 [3] and he made the following orders:
[3] Wilde & Wilde [2016] FCCA 944
1. The Father’s Application for dismissal pursuant to Rice & Asplund (1979) FLC 90-725 is dismissed.
2. The matter be adjourned to 13 July 2016 at 9:30am for Mention.
The parties were able to agree to the preparation of an expert report by Dr A on the 11 April 2017.[4]
[4] Expert Report released to the parties on 25 September 2017.
On 26 July 2018 Judge Altobelli listed the matter for a two day final hearing. The final hearing was heard by me in the Wollongong Court House on 20 and 21 November 2018 and the Court’s decision was thereafter reserved pending receipt of written final submissions. Those written final submissions were ultimately received by the Court by 21 January 2019.
Agreed outcomes
The parties were ultimately able to agree on the following outcomes (as reflected in an unsigned Minute filed with the Court on 24 December 2018) (‘the Agreed Minute”)[5].
[5] Unsigned Minute received by Chambers via email on 24 December 2018 by the Applicant mother legal representative, which cc’d the legal representative for the Respondent father. The attached correspondence detailed that “through the negotiations we have deduced that these appear to be agreed to”. Chambers did not receive any further correspondence from the Respondent father to indicate that he did not consent to the minute.
1. That Order 24 of the Orders dated 27 September 2012 be discharged.
2. That subject to Order 3, whilst the child B born in 2007 is travelling to spend time with the Father, any flights to the father’s country of residence or other overseas destination are to where possible to be direct flights and that where possible they should be scheduled during daytime hours.
3. That the Father’s time with B be subject to the following conditions:
3.1 That until such time as B is able to travel as an unaccompanied minor pursuant to these orders, B is to be accompanied on all air travel during the time he spends with his father by one of the following persons; the father, the paternal grandparents, the father’s wife Ms D, B’s siblings G, H, J, uncle[6] or such other person agreed between the parties.
3.2 That the first flight that B takes as an unaccompanied minor in accordance with these Orders is to be the return trip from Country E to Sydney.
3.3 During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself or his current partner, Ms D, except if B is enrolled in a vacation care program that he is to attend with Ms D’s daughter K.
4. Leave is granted for these Orders, and the Expert Reports of Dr A dated 20 September 2017 and 31 October 2018 to be released to any therapist treating B, together with a copy of the Order made on 25 September 2017 releasing the report and the limitations on the use and dissemination of the report.
5.[7] That the mother ensure that B continues to engage with a psychologist on a regular basis in regard to his diagnosis of ASD and also the other areas outlined in the recommendations of Dr A in his report dated 20 September 2017, and that each parent shall meet with the psychologist in a face to face meeting at least once, plus other times via Skype as requested by the psychologist to discuss B’s development and wellbeing, and more specifically the preparation of B for unaccompanied air travel.
NOTATION:
A. IT IS NOTED: that Parenting Orders concerning the child B include Orders made by consent on 27 September 2012 (so far as they are consistent with these Orders and the Orders of Justice Watts), Orders made by Justice Watts on 30 November 2015 and these Orders.
Proposals
[6] The parties did not define the name of the paternal “uncle” in any of their provided minutes. I note that the mother refers to the father’s brother’s ‘Mr M’ in paragraph 77 of the her Affidavit filed on 16 November 2018. Given the omission, the reference to “uncle” will not be specified in the final orders of the judgment.
[7] The paragraph is numbered “6” on the Minute.
Mother
The mother seeks an outcome whereby B will be permitted to travel unaccompanied from 1 January 2021 provided that he undertakes counselling as recommended by Dr A (such additional counselling requirements provided in paragraph 8 below). In circumstances where there are no direct flights and the available flight requires a stop over, the mother seeks the father collect the child at the end of the first leg and accompany the child until the final leg. This order is also sought for return non-direct flights. Further the mother seeks that any additional person (as agreed) accompanying B be required to accompany B to any public bathroom.
In addition, the mother seeks orders that any unaccompanied minor travel be conditional upon B not having any periods of school suspension within the previous 12 months and that the relevant flight booking include details to the airline carrier that B has a diagnosis of ‘ADHD.’[8]
[8] Autism Spectrum Disorder
Upon noting that paragraphs 1 to 5 of the mother’s Minute replicates the Agreed Minute referred to above, the mother’s Minute states (noting that new content is in bold text):
1. That Order 24 of the Orders dated 27 September 2012 be discharged.
2. That subject to Order 3, whilst the child B born in 2007 is travelling to spend time with the Father, any flights to the father’s country of residence or other overseas destination are to where possible to be direct flights and that where possible they should be scheduled during daytime hours.
3. That the Father’s time with B be subject to the following conditions:
3.1 That until such time as B is able to travel as an unaccompanied minor pursuant to these orders, B is to be accompanied on all air travel during the time he spends with his father by one of the following persons; the father, the paternal grandparents, the father’s wife Ms D, B’s siblings G, H, J, uncle or such other person agreed between the parties.
3.2 That the first flight that B takes as an unaccompanied minor in accordance with these Orders is to be the return trip from Country E to Sydney.
3.3 During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself or his current partner, Ms D, except if B is enrolled in a vacation care program that he is to attend with Ms D’s daughter K.
4. Leave is granted for these Orders, and the Expert Reports of Dr A dated 20 September 2017 and 31 October 2018 to be released to any therapist treating B, together with a copy of the Order made on 25 September 2017 releasing the report and the limitations on the use and dissemination of the report.
5. That the mother ensure that B continues to engage with a psychologist on a regular basis in regard to his diagnosis of ASD and also the other areas outlined in the recommendations of Dr A in his report dated 20 September 2017, and that each parent shall meet with the psychologist in a face to face meeting at least once, plus other times via Skype as requested by the psychologist to discuss B’s development and wellbeing, and more specifically the preparation of B for unaccompanied air travel.
6. The father’s time with B is subject to the following further conditions:
7. In the event that there are no direct flights and the available flight will require a stop over then the father shall collect the child at the end of the first leg of the flight from the stop over point and shall then accompany him on the further flight, and shall then return the child by direct flight if available or if no direct flight is available the father shall accompany the child until the final leg of the flight back to Australia.
8. That in the event that the father arranges for a person accompanying B during air travel pursuant to 3.1, then the father shall advise that person that they are required to accompany B into any public bathroom if B needs to use the toilet and stay with B (but not in the cubicle) until he has finished in the bathroom, or if the person accompanying B is a female outside the public bathroom and the father shall request that the airline provide public toilet accompaniment when the father books the child on an unaccompanied service.
9. That from 1 January 2021 (unless otherwise agreed), the parents shall be permitted to arrange for B to travel as an unaccompanied minor, provided that B has undertaken counselling as recommended by Dr A (including understanding personal boundaries in terms of ‘private parts’, and protective behaviours, and had therapy in regard to readiness to travel as an unaccompanied minor) and to facilitate this therapy the mother shall be responsible for arranging such therapy.
10. All unaccompanied minor travel shall be conditional on B not having had any periods of suspension from school within the previous 12 months.
11. That once B is able to travel as an unaccompanied minor the parent making the flight bookings shall advise the airline carrier of B’s diagnosis of ADHD and Autism Spectrum Disorder.
NOTATION:
A. IT IS NOTED: that Parenting Orders concerning the child B include Orders made by consent on 27 September 2012 (so far as they are consistent with these Orders and the Orders of Justice Watts), and Orders made by Justice Watts on 30 November 2015 and these Orders.
Father
The father seeks an outcome whereby B will be permitted to travel unaccompanied from 6 November 2020 provided that he undertakes counselling as recommended by Dr A (such additional counselling requirements provided in paragraph 4.1 below). Furthermore the father seeks an order that the mother be responsible for advising the father what therapy has been arranged for B.
In circumstances where there are no direct flights and the available flight requires a change of airline, the father will collect the child at the end of the first leg and accompany the child until the final leg. This order will also apply on non-direct return flights. Furthermore the father proposes a similar bathroom accompaniment order to the mother however proposes a change to the wording of the order (as provided in paragraph 3.2 below). He also proposes an order that the relevant flight booking include details to the airline carrier that B has special needs.
Upon noting that the father’s Minute also incorporates content from the Agreed Minute, the father’s Minute states (noting again that new content is in bold text):
1. That Order 24 of the Orders dated 27 September 2012 be discharged.
2.1 That subject to Order 3, whilst the child B born in 2007 is travelling to spend time with the Father, any flights to the father's country of residence or other overseas destination are where possible to be direct flights and that where possible they should be scheduled during daytime hours.
2.2 Up until the child turns 15 years of age in the event that there are no direct flights to the Father's country of residence or other overseas destinations and the available flight will require a change of airline then the father shall collect the child at the end of the first leg of the flight from the stop over point and shall then accompany him on the further flight to the Father's country of residence or other overseas destination, and shall then return the child by direct flight if available or if no direct flight is available the father shall accompany the child and place child on a flight back to Australia.
3. That the Father's time with B be subject to the following conditions:
3.1 That until such time as B is able to travel as an unaccompanied minor (as defined in Order 3.3 herein), B is to be accompanied on all air travel during the time he spends with his father by one of the following persons; the father, the paternal grandparents, the Father's wife Ms D B's siblings G, H, J, uncle[9] or such other person agreed between the parties.
3.2 That in the event that the father arranges for a person accompanying B during air travel pursuant to 3.1, then the father shall advise that person that should accompany B into any public bathroom if B needs to use the toilet and stay with B (but not in the cubicle) until he has finished in the bathroom or if the person accompanying B is a female outside the public bathroom and the Father shall request that the airline provide public toilet accompaniment when the Father books the child on an unaccompanied service.
4.1 That from 6 November 2020 (unless otherwise agreed), the parents shall be permitted to arrange for B to travel as an unaccompanied minor, provided that B has undertaken counselling as recommended by Dr A (including protective behaviours, and had therapy in regard to readiness to travel as an unaccompanied minor) and to facilitate this therapy the Mother shall be responsible for arranging therapy and shall keep the Father advised as to what therapy has been arranged.
4.2 That the first flight that B takes as an unaccompanied minor in accordance with these Orders is to be the return trip from Country E to Sydney.
5. For the purposes of Order 3.3 above, leave is granted for these Orders, and the Expert Reports of Dr A dated 20 September 2017 and 31 October 2018 to be released to any therapist treating B, together with a copy of the Order made on 25 September 2017 releasing the report and the limitations on the use and dissemination of the report.
6. That once B is able to travel as an unaccompanied minor the parent making the flight bookings shall advise the airline carrier of B's special needs.
7. During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself or his current partner, Ms D, except if B is enrolled in a vacation care program that he is to attend with Ms D's daughter K.
8. That the Mother ensure that B continues to engage with a psychologist on a regular basis in regard to his diagnosis of ASD and also the other areas outlined in the recommendations of Dr A in his report dated 20 September 2017, and that each parent shall meet with the psychologist in a face to face meeting at least once, plus other times via Skype as requested by the psychologist to discuss B's development and wellbeing, and more specifically the preparation of B for unaccompanied air travel.
NOTATION:
A. IT IS NOTED: that Parenting Orders concerning the child B include Orders made by consent on 27 September 2012 (so far as they are consistent with these Orders and the Orders of Justice Watts), Orders made by Justice Watts on 30 November 2015 and these Orders.
[9] As stated previously, no name is specified for “uncle”.
Evidence
Only the father and the single expert, Dr A, were required for cross-examination.
Mother
The mother relied on the following documents:
·Initiating Application filed on 19 October 2015;
·Her Notice of Risk filed on 19 October 2015;
·Her affidavit affirmed and filed on 16 November (parts 1 and 2); and
·Affidavit of Mr N (“the child’s psychologist”) affirmed and filed on 15 October 2018.
The mother tendered a copy of an email sent to the father dated 27 June 2018 that attached a copy of the child’s Year 5 School Report for Semester 1, 2018 (Exhibit “1”).
As stated, the mother was not required for cross-examination.
Father
The father relied on the following documents:
·Amended Response filed on 14 November 2018;
·His affidavit sworn and filed on 16 November 2018 and tender bundle to the affidavit;
·His Minute of Order.
The father did not tender any documents.
The father gave his oral evidence by telephone. He was well spoken and was generally able to agree to reasonable propositions that were put to him.
Dr A
Expert Report
As stated above, Dr A, a Consultant Child, Adolescent and Family Psychiatrist, prepared an Expert Report in this matter that was released by Judge Altobelli on 25 September 2017 (“the Expert Report”) (see Exhibit “A”). Dr A also provided a letter to the parties legal representatives dated 31 October 2018 that answered certain questions posed by the wife’s legal representative (with the father’s consent) (also see Exhibit “A”).
The interviews were conducted by Dr A on 10 July 2017.
Dr A outlines the context and background to the matter in paragraphs 1 to 12 of his report.
Dr A then goes on to outline his interview with the mother in paragraphs 13 to 17, the father in paragraphs 18 to 22 and the father’s partner (Ms D) in paragraphs 23 to 27.
Details of Dr A’s interview and observations of B appear in paragraphs 28 to 31.
Dr A also interviewed the child’s psychologist, Mr N as detailed in paragraphs 32 to 41 of the report.
Dr A thereafter provides his comprehensive response to the questions posed to him by the parties in 42 to 128.
Dr A concluded his report by providing the following recommendations in paragraphs 129 to 139:
129. These recommendations are based on the observations and impressions above. If the court findings differ from my observations and impressions, these recommendations may alter.
130. I note the focus of this dispute and of the matters that I was asked to consider, upon the issue of the child’s domestic and overseas air travel, and on what type and level of adult supervision is required to support the same, now and in future.
131. The child be accompanied during any domestic or international air travel by a parent or by another adult known to him, at this time and until a certain age. I would recommend until age 13.
132. In my view, the range of adults who might play this role could be quite broad, and likely include persons such as the paternal half-siblings, either of the paternal grandparents, and the paternal uncle. The mother expressed concern about the interpersonal sensitivity and skills of some of these persons. Two or three years ago, when the child was still having intermittent emotional and behavioural decompensations, I would have felt that the accompanying adult may well have needed to have known the child well, and to have quite high interpersonal sensitivity and skills. But now, even if the mother’s concerns about some of the above persons were considered valid, I feel that the child’s adaptive capacities have developed to the point that the child will be able to adapt to any but quite gross deficits in parenting capacity in the adult, and the adult will still be able to play the role of focussing upon the child during any acute situation or incident during the flight, and working with the other adults present and the child to maintain safety and resolve the issue. It would be appropriate for the adult not to consume alcohol for 12 hours prior to nor during the flight.
133. From age 13 to an older age, I suggest until age 16, the child not require an adult as above, but the child be booked as an unaccompanied minor. I do not have specific expertise on the policies of airlines about such matters, but my own enquiries lead me to believe that most airlines require children travelling alone under a certain age (e.g. for Qantas 11 or under) to be registered as unaccompanied minors, then allow the option for the same within an older age range (e.g. for Qantas 12 to 15). I am recommending that the latter option be taken up as standard for the child from age 13 until he reaches age 16, if he is not travelling with a known adult.
134. From age 16 until he reaches the age of 18, the child be booked as a “Young Passenger” (Qantas terminology, or equivalent for other airlines if the service is available) if travelling alone, but this service not be considered essential. My understanding is that this service does not involve any specific support and does not usually attract a fee, but identifies the child to crew if there is a delay or disruption associated with the flight.
135. The mother seeks arrangements that would limit the stress upon the child by flight arrangements, for example direct flights and/or day time flights. The father told me that he does his best in that regard, but that sometimes such flights are not available. I do not have expertise in the availability and affordability of certain types of flights. It would be appropriate to choose flights that reduce time spent travelling, transferring, and waiting, for the child. If the court is concerned about the father’s prioritising of such matters, it might be reasonable to make orders regarding the same, but only if such orders do not unreasonably constrain the father’s ability to facilitate the child’s time with him, or create unreasonable expense for the father.
136. The child continue to attend a psychologist on a regular basis, and the preparation of the child for the above arrangements be incorporated into the therapy provided by the psychologist.
136.1 The child developing the capacity to travel safely and competently on domestic and international flights will facilitate his maintaining a meaningful relationship with the father and paternal family, and I note that there will also be a lot of overlap with the broader capacities required in the child’s life.
136.2 Children with ASD are less likely than neurotypical children to absorb and integrate the required knowledge and skills from their interpersonal environment, and are more likely to require deliberate and specific assistance with developing the same.
136.3 Areas of competence that might be covered would include:
136.3.1 Protective behaviours, and appropriate boundaries in terms of friendly but appropriately cautious/ protective interactions with pleasant or unpleasant “strangers”.
136.3.2 Concepts of personal space, and strategies for the child to use in responding to intrusive or otherwise challenging passengers.
136.3.3 Emergency situations, including understanding how other adults and children can react in such situations, and how to understand and respond to the same.
136.3.4 Discussion of the different relatives or other adults known to the child who might be travelling with the child, the child’s experience of them, and how best to work with/ adapt to them.
136.3.5 Cultural and language differences between countries and people, how this can effect communication and mutual understanding and what methods one uses to communicate non-verbally when language is not shared, and thus enrich the child’s social skills. In my experience, cross-cultural and bilingual experiences are a useful learning opportunity, for children with ASD.
136.3.6 Comparative and specific safety issues for the child in Australia and in Country E, the latter including issues of dealing with the traffic situation.
136.4 The father meet with the psychologist on at least one occasion per year face-to- face, alone and with the child.
136.4.1 The main purpose of this meeting is to discuss the child’s broader development and wellbeing, and more specifically the preparation of the child for the orders.
136.4.2 It would also be useful for the father, child and psychologist to discuss safety issues in the father’s locale such as traffic dangers, to reinforce the safety message regarding the same.
136.4.3 This is an opportunity for the father, child and psychologist to discuss the areas of competence above, in particular 3.4 to 3.6.
136.4.4 The father modelling respect for the psychologist and use of the psychologist in this way will enrich the child/ psychologist relationship.
136.4.5 In my experience, such annual face-to-face meetings form an effective foundation for any subsequent electronic communication between the psychologist and the father, that might be required.
136.4.6 I would strongly recommend that the first of these meetings be in person, and as many of the others as is possible be in person, but that for subsequent meetings, Skype or other video means of communication would be an alternative, the child being with the father overseas, or with the psychologist.
136.5 I am NOT suggesting an arrangement where the timing of progression of the orders is linked to the psychologist’s pronouncement of when the child is “ready”. In my experience such arrangements place distorting pressure upon the therapy, and can lead to error both in terms of over-caution and over-confidence. Rather, I suggest that progressions in orders be prescribed, and the therapy focus upon assisting the child (and parents, if they need that assistance) to adapt to the same.
136.6 Appointments occur at a frequency recommended by the psychologist, and continue at least until the child reaches the age of 16. I am not wishing to over-therapise the child, but after an initial period of regular therapy I am wishing to provide a known therapeutic context where the child or either parent can bring any concerns if/ as they arise. If all was going well after a time, and with the guidance of the psychologist, the appointments could be reduced to a minimum of two per year with the mother, and one with the father.
136.7 The child does not require specific therapy with regard to his past history of sexually inappropriate behaviour from a family friend, and bodily/ sexual intrusion by a peer. But, it is important that his psychologist is aware of that history, and open to discussing the same should the child initiate the same. In the light of the child’s history of past bodily/ sexual intrusion, it is important that over time, therapy specifically include assisting the child with understanding personal boundaries in terms of “private parts”, and protective behaviours, and the psychologist needs to be sensitive to the child’s emotional and psychological responses, when educating the child and discussing such matters with the child. The parents need to be involved in and aware of the progress of such discussions.
136.8 The psychologist be given a copy of this report and any orders made with regard to therapy.
137. I do not see that there is a need for specific orders requiring the father to be present at all times that the child is in his care, or limiting the role played by the father's partner.
138. If the court is concerned about the father neglecting the child during holiday time, for example working long hours and leaving the child in the sole care of the father's partner, then orders might be made about the father taking full or partial leave during the child’s time with the father.
139. If the court is concerned about the father placing the child in long periods of substandard child care, then the father might be restricted from placing the child in care that does not meet Australian professional standards, for longer than half a day, until age 13, after which each parent might be able to use their judgement about the same.
Dr A also provided an Addendum to his report by his letter addressed to the parties’ legal representatives dated 31 October 2018. Dr A outlines the context for the Addendum (in paragraphs 1 to 5) and in paragraph 6 confirms that he spoken to B’s psychologist, Mr N. Dr A then states the following in paragraphs 7 to 14 of the Addendum:
7. I have reviewed the information provided. I note the specific comment by the speech pathologist in the first paragraph of the fourth page of her report, regarding environmental impacts and “safety issue[s]”.
8. The child’s vulnerabilities identified in these updating reports were evident in the reports provided to me at the time of initial assessments, and during the interview and assessment process, and were taken into account at that time. They do not appear to have worsened.
9. Reading these letters does not alter my recommendations.
10. I note that I am recommending a reduced level of support from age 13 to 16, and even (where the airline allows) from age 16 to 18, rather than absent support.
11. It is an expected aspect of child and adolescent development, that as a child grows up, they will gradually be guided towards taking on greater responsibility for self, with a gradual reduction in the extent of adult scaffolding. Any step in that process carries an element of risk: that the child will struggle to adapt to that step. But, an overly conservative approach that maintains adult scaffolding for longer than required also carries an element of risk: that the child’s development of skills and confidence will be unnecessarily limited, and thus the child will be less capable and more vulnerable over time.
12. This process does have to be careful and considered. In producing my initial report and in undertaking this review, I have been careful to consider the child’s vulnerabilities, and his capacities.
13. I note that my recommendation was made with a view to manage “even small and contingent risks” [paragraph 100 of the single expert report] in the context of air travel, and thus was intended to be quite conservative.
14. I stand by my comment at paragraph 136.5
Oral evidence
As stated, Dr A was required for cross examination. I have only included any evidence that is relevant to the issues in dispute.
At the commencement of his oral evidence, Dr A confirmed to the Court his view that B should be ready to travel by air as an ‘unaccompanied minor’ by 13 years of age[10] and that he should travel as such until the age of 16 when he would transition to fly as a ‘young passenger’.[11] I note that while international airlines (such as Qantas)[12] require parents to register their child as an ‘unaccompanied minor’ for a fee if aged between the ages of 6 and 11 (inclusive),[13] parents have the option to register their child aged between 13 and 15 (inclusive) as an ‘unaccompanied minor’ again for payment of a fee. I also note that international airlines (such as Qantas)[14] do not operate an unaccompanied minor service once a child attains the age of 16 years, however, parents can request the airline to list their child as a ‘young passenger’ so they are identifiable to crew in the event of a delay or disruption.
Cross-examination by Ms Reynolds
[10] I note that Dr A later gave evidence that delaying the first unaccompanied minor flight to the “end of the year” (rather than the July 2020 school holidays) given B’s need to adjust to high school which “for a child with autism is hard”: see Transcript, 20 November 2018, page 11.
[11] Transcript, 20 November 2018, page 4.
[12] See (accessed 7 January 2020).
[13] The Court understands that a child as young as 5 years may also travel as an unaccompanied minor on a Qantas international flight if the flight time is less than 6 hours.
[14] See (accessed 7 January 2020).
Dr A was cross-examined by Ms Reynolds about the issue of B travelling as an unaccompanied minor on a non-direct flight from Australia to Country E. Dr A opined that:
… if there is a circumstance where the child is basically not an unaccompanied minor for part of the travel, because he’s needing to get himself from one responsible adult system to another, I would be cautious about that … it doesn’t really sit within my recommendations that the child … being an unaccompanied minor and then have a period of time where he had to take himself to connect with his next unaccompanied minor role. I don’t think that would sit within my recommendation.[15]
[15] Transcript, 20 November 2018, page 8.
In relation to the issue of whether any school suspensions in the previous 12 month period should act as a caveat to any unaccompanied flights, Dr A stated:
I’m hesitating because there can be various reasons for suspension. It doesn’t always tie in with capacity to fly. I think that’s reasonable, that there’s no suspensions in the preceding 12 months, because typically, a suspension will arise from aberrant behaviour in the child, which can be a marker of difficulty managing oneself within adult systems, so yes, I think that’s reasonable. We’re not saying not flying. We’re saying that he would need another adult to fly with him, if that has occurred.[16]
[16] Transcript, 20 November 2018, page 13.
In relation to the mother’s concerns about B being vulnerable to the risk of sexual abuse, Dr A responded:
I think it’s understandable that the mother has serious concerns about it. I think, you know, many parents carry a concern about that and considering that there has been a history of sexual intrusion upon the child or, at least, suspected sexual intrusion upon the child, then I think it’s understandable that the mother carries that concern.[17]
[17] Transcript, 20 November 2018, page 13.
Dr A was also asked by Ms Reynolds, given B’s history and his autism, whether he would have difficulty in protecting himself from that eventuality. Dr A responded:
I mean, by definition, most young people have difficulty protecting themselves. The act is one that takes advantage of a vulnerable other. It’s true that … he’s more vulnerable than the average child his age because of his autism. In other ways, he can be protected because of a valuing of, sort of, routines and boundaries, and definitely, as has already occurred in his counselling, it will be important that he travels with very clear understanding of what his boundaries are in terms of his interaction with other people, that – as he said to me, that he’s, sort of, you know, polite and reasonable but doesn’t go with others to other places and that he can be further assisted as he grows up with understanding what he can and can’t do with others, so I’m saying that he’s more vulnerable in the subtleties of interpersonal interaction, but he does have capacity, at least as good as others and perhaps even better than others, in terms of understanding clear behavioural boundaries around what one does and doesn’t do with other adults, and potentially, that could be particularly reinforced with regard to preparing for flight.[18]
Cross-examination by Mr Grant
[18] Transcript, 20 November 2018, pages 13 - 14.
Mr Grant for the father asked Dr A about B having ongoing counselling. Dr A responded:
Look … I think it’s accurate, that it’s reasonable that this counselling continue. I wasn’t intending that there be, like, a tick box that his counsellor has to say, you know, “yes”. So I’m not wanting to make the counsellor the gatekeeper … I wouldn’t want to take my recommendations, for example, about preparation for contingencies on saying that the counsellor has to sign off because that’s unfair to the counsellor. I’m the single expert and the orders are the orders, but I don’t think it would be unreasonable to say that the child continue counselling or that the father see the counsellor at least once a year.[19]
[19] Transcript, 20 November 2018, page 17.
Dr A was then asked about the mother’s proposal for there to be a pre-condition travel occurring on an unaccompanied basis where there has been no school suspensions in the previous 12 months. Dr A responded:
Well, I’ve made a comment, but I actually do think it’s reasonable that if there has been a suspension within the last 12 months, that any adult – and I’ve put forth a view that it doesn’t have to be the father but it can be one of those other adults – travel with him. I think that’s reasonable. And I wouldn’t want to extend that to, you know detentions or concerns. Suspension is a very concrete thing. It demonstrates quite a significant breach of what’s, sort of, acceptable standards of a school. I think that would be a reasonable contingency.[20]
Summary of Dr A’s views and concerns
[20] Transcript, 20 November 2018, page 17.
Following cross-examination, I asked Dr A series of questions to summarise his views and concerns.
Dr A confirmed his view given under cross-examination that unaccompanied travel could be delayed to commence by the end of 2020 when B had completed his first year at high school.[21] Dr A also agreed that the first time B travels unaccompanied should occur on the return flight to Australia from Country E (as the child had expressed a preference for).[22] Dr A commented:
In fact, I feel a bit embarrassed not having made the recommendation because that would be a very respectful thing to do for the child and I think it makes sense. So, yes, I think that would be positive to enact the, sort of, thought that he had about the best way to start it.[23]
[21] Transcript, 20 November 2018, page 20.
[22] Transcript, 20 November 2018, page 20.
[23] Transcript, 20 November 2018, page 20.
In relation to any ‘triggers’ that might prevent unaccompanied travel Dr A remained of the view that it be subject to B not having any formal suspension from school (rather than a ‘lesser offence’ such as detention) in a period prior to the proposed travel. That said, Dr A did not support there being any automatic ‘veto’ to the travel occurring if reservations were expressed by the child’s psychologist, the mother or B himself.[24]
[24] Transcript, 20 November 2018, page 19.
In relation to whether unaccompanied travel should only occur through direct flights, Dr A confirmed his concern about transitions between non-direct flights being potentially unaccompanied. Dr A stated:
I wasn’t suggesting that the stopover itself was a problem but that I must admit any concern about, for example, some shift between airlines, meaning that the child could be, sort of, left high and dry at a stopover or city, I think, wouldn’t be consistent with my recommendations.[25]
Dr A went on to confirm that any non-direct travel would have to be conditional on there being an airline accompanied transition.[26] He also agreed that the problem of non-direct flights would be mitigated by the father meeting the child at the end of the first flight leg at the stopover airport (for example, in Country O) and then travel with B on the second flight to Country E (or other final destination).[27]
[25] Transcript, 20 November 2018, page 20.
[26] Transcript, 20 November 2018, page 20.
[27] Transcript, 20 November 2018, page 20.
Submissions
Both parties provided written final submissions.
Mother
Ms Reynolds for the mother provided the following submissions dated 20 December 2018:
Orders sought by mother and not agreed to by the father
The following, [not] in Italics, are the orders which the mother proposes, but the father does not agree to.
The underlined words are the words the father objects to. The words in bold are the words the father prefers.
The mother’s submissions follow each proposed order.
The father’s time with B is subject to the following conditions:
6. Up until B turns 15 years of age, In the event that there are no direct flights and the available flight will require a stop over (change of airline) then the father shall collect the child at the end of the first leg of the flight from the stop over point and shall then accompany him on the further flight, and shall then return the child by direct flight if available or if no direct flight is available the father shall accompany the child until the final leg of the flight back to Australia.
There are 2 issues in this order. The first issue is whether B should no longer be met by the father on non direct flights at the stopover point once he turns 15. It is submitted on behalf of the mother that even at age 15 B will encounter difficulties as outlined below if he is in transit unaccompanied.
The second issue is whether the father should meet B at the end of the first leg of all non direct flights. Airline policy, as found in the annexures to the father’s affidavit, is that they will only provide the unaccompanied minor service if both legs of the flight are with the same airline. The father agrees to collect B at the end of the first leg of flights, but only if the flight as booked has the second leg on a different airline. The problem with this is that although the flight as booked might be scheduled to have the same airline for both flights, the second leg may end up with a different airline, due to the first flight being delayed or due to some other interruption. In this case the airline will not provide transfer assistance to B, leaving him to find his own way to his connecting flight. This will be too much for B to manage and place him at risk. He may find himself with a long stopover, changes of gates, and changes of airlines. He should not be at risk of being in transit unaccompanied in these situations.
7. That in the event that the father arranges for a person accompanying B during air travel pursuant to 3.1, then the father shall advise that person that they are required to (should) accompany B into any public bathroom if B needs to use the toilet and stay with B (but not in the cubicle) until he has finished in the bathroom.
The mother submits that any accompanying person must feel the strictest possible obligation to accompany B to the bathroom. The wording should be “are required to” rather than just “should.” B was sexually abused in the toilets at his school, repeatedly, and did not have the resources to deal with this. It was not reported by him to anyone. His Autism Spectrum Disorder makes him vulnerable.
The mother submits that the father is already required under the Orders made by Justice Watts on 30 November 2015 (additional Orders – Order 1.2) to accompany B whilst he is using the bathroom and this should therefore extend to the other persons who accompany B during his father’s time.
8. That from 1 January 2021 (6 November 2020) (unless otherwise agreed), the parents shall be permitted to arrange for B to travel as an unaccompanied minor, provided that B has undertaken counselling as recommended by Dr A (including understanding personal boundaries in terms of ‘private parts’, and protective behaviours, and had therapy in regard to readiness to travel as an unaccompanied minor) and to facilitate this therapy the mother shall be responsible for arranging such therapy (and shall keep the father advised as to what therapy has been arranged).
There are 3 issues in this order. The first is the date of B commencing unaccompanied travel. (1.1.21 or 6.11.20). There is no practical difference in the order as sought by either parent, as there will not be a trip before January 2021, as trips occur only in school holidays, and the first unaccompanied trip must be the return trip to Australia. Dr A’s evidence was that the first unaccompanied trip should not occur until the end of 2020.
The second issue is whether the therapy for B should include B understanding “personal boundaries in terms of private parts”. The father opposes this. It is not clear why. The mother submits this therapy is essential for B given his history of sexual abuse which he was unable to either resist or report to others. It needs to be spelt out in the orders that this is to be part of the therapy he must receive.
The third issue is the mother keeping the father advised of B’s therapy. The mother objects to being obliged to do so. The orders require the father to communicate with the therapist and he should do so rather than placing an obligation on the mother.
9. All unaccompanied minor travel shall be conditional on B not having had any periods of suspension from school within the previous 12 months.
The father objects to this order in its entirety, even though he previously indicated he agreed with all of Dr A’s recommendations. This order was put to Dr A in cross examination. He paused for some time before answering and clearly gave it careful consideration. He was of the view that this order should be made. His evidence was to the effect that if B were to be suspended it would show some serious behaviour, beyond behaviour that would merely earn him a detention. He also stated that it would show B was not able to abide by the rules and norms of the school, and would thus show some issues for B which would need to be addressed over a period of time. The mother submits that it is not possible to know how B may adjust to high school and the demands of adolescence, and whether there will be deterioration in his behaviour and his ability to cope with things generally. A suspension would be a gauge of whether he is having serious behaviour issues. It is submitted the court would follow Dr A’s recommendation.
10. That once B is able to travel as an unaccompanied minor the parent making the flight bookings shall advise the airline carrier of B’s diagnosis of ADHD and Autism Spectrum Disorder. (Special needs)
The mother seeks that the airline be advised of the nature of B’s issues. The father seeks that they be advised only that he has “special needs”. It is difficult to see why one would not want the airline to know what B’s issues are. The words “special needs” tell you nothing about what to expect in B’s behaviour, or how B might be assisted. Surely the aim is to ensure an easier time for B, and making staff aware of the nature of his issues can only be beneficial to him and enhance the assistance he is given by staff while he is in transit.
Father
Mr Grant for the father provided the following submissions dated 8 January 2019 (and for context, the father’s proposed order is also reproduced below (but not in Italics):
Order 2.1
2.1 That subject to Order 3, whilst the child B born in 2007 is travelling to spend time with the Father, any flights to the father's country of residence or other overseas destination are where possible to be direct flights and that where possible they should be scheduled during daytime hours.
The Father will use all efforts to make bookings on direct flights and in daylight hours however the airlines may change their timetables and routes. The proposed Order is in appropriate form to take account of the fact that the Father cannot control these actions by the airlines but compel him to make an effort to book on direct and daytime flights.
Order 2.2
2.2 Up until the child turns 15 years of age in the event that there are no direct flights to the Father's country of residence or other overseas destinations and the available flight will require a change of airline then the father shall collect the child at the end of the first leg of the flight from the stop over point and shall then accompany him on the further flight to the Father's country of residence or other overseas destination, and shall then return the child by direct flight if available or if no direct flight is available the father shall accompany the child and place child on a flight back to Australia.
This Order is drafted to take account of Dr A's comments in relation to what might occur if the child was required to travel from Australia to Country E on a non-direct flight that might include a change of airlines. Dr A's view was that a change of airline was a matter of concern. The Father submits that by the time the child attains the age of 15 years some years of overseas travel would have been achieved and this would allow B to develop and be able to deal with a change of airlines or a split flight. This would put B in a position where he has only one direct flight when he would not be with his Father.
The Father proposes that until he attains the age of 15 that the Father assist with split flights or change of airline by:-
(a) Accompanying him on the final outbound leg of a split flight or change of airlines.
(b) Accompanying him on the first leg of the return flight on a split flight or change of airline.
Order 3.1
3. That the Father's time with B be subject to the following conditions:
3.1 That until such time as B is able to travel as an unaccompanied minor (as defined in Order 3.3 herein), B is to be accompanied on all air travel during the time he spends with his father by one of the following persons; the father, the paternal grandparents, the Father's wife Ms D, B's siblings G, H, J, uncle or such other person agreed between the parties.
The Father proposes that the paternal grandparents and the Father's wife should also be able to accompany the child. These are persons identified by Dr A as appropriate.
Order 3.2
3.2 That in the event that the father arranges for a person accompanying B during air travel pursuant to 3.1, then the father shall advise that person that should accompany B into any public bathroom if B needs to use the toilet and stay with B (but not in the cubicle) until he has finished in the bathroom or if the person accompanying B is a female outside the public bathroom and the Father shall request that the airline provide public toilet accompaniment when the Father books the child on an unaccompanied service.
The persons accompanying B provided for and authorised by 2.1 of the Orders may be female. In those circumstances the Order needs to take account of the fact that a female could not enter the male toilets and the clause has been so drafted to take account of this fact.
Order 4.1
4.1 That from 6 November 2020 (unless otherwise agreed), the parents shall be permitted to arrange for B to travel as an unaccompanied minor, provided that B has undertaken counselling as recommended by Dr A (including protective behaviours, and had therapy in regard to readiness to travel as an unaccompanied minor) and to facilitate this therapy the Mother shall be responsible for arranging therapy and shall keep the Father advised as to what therapy has been arranged.
Travel should occur from 6 November 2020 as this is an exact date and one suggested by Dr A. The Father submits that the Mother being the primary carer should be responsible for arranging therapy for B in City P where he resides.
Order 4.2
4.2 That the first flight that B takes as an unaccompanied minor in accordance with these Orders is to be the return trip from Country E to Sydney.
Not contentious.
Order 5
5. For the purposes of Order 3.3 above, leave is granted for these Orders, and the Expert Reports of Dr A dated 20 September 2017 and 31 October 2018 to be released to any therapist treating B, together with a copy of the Order made on 25 September 2017 releasing the report and the limitations on the use and dissemination of the report.
Not contentious.
Order 6
6. That once B is able to travel as an unaccompanied minor the parent making the flight bookings shall advise the airline carrier of B's special needs.
The Father should advise the airline of special needs rather than attempt to explain a diagnosis which may not be understood. B's special needs should be identified but not to an extent to which dissuade an airline from accepting B as a passenger.
Order 7
7. During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself or his current partner, Ms D, except if B is enrolled in a vacation care program that he is to attend with Ms D's daughter K.
Not contentious.
Order 8
That the Mother ensure that B continues to engage with a psychologist on a regular basis in regard to his diagnosis of ASD and also the other areas outlined in the recommendations of Dr A in his report dated 20 September 2017, and that each parent shall meet with the psychologist in a face to face meeting at least once, plus other times via Skype as requested by the psychologist to discuss B's development and wellbeing, and more specifically the preparation of B for unaccompanied air travel.
The Mother should be responsible for organising engagement with the psychologist as B lives with his Mother in City P. The Father resides in Country E.
Mother’s submissions in reply
Ms Reynolds for the mother provided the following reply submissions dated 21 January 2019:
The mother submits as follows in response to the father’s submissions.
Order regarding suspension from school:
It is noted that the father makes no submission against the order regarding suspension from school, (order 9), even though he does not include that as an order he agrees to in his minute. The order the mother seeks was approved of by Dr A.
Order regarding non direct flights:
The father’s proposed order 2.2 regarding non direct flights does not take account of the risk of an unscheduled change of airline on a non direct flight. ie. where the second leg is changed to a different airline. The father’s submissions do not address this particular situation, and wrongly states that the father’s orders take account of Dr A’s concerns about non direct flights.
Toilet Assistance:
The Father’s proposed Order 3.2 is agreed in so far as the female accompanying B may wait outside the toilet, and the mother relies on her previous submissions and has included in the attached minute her proposed Order.
Relevant law
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act, and deal with issues relevant to this dispute, including issues relevant to the time and circumstances that a child spends with one of his or her parents. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act provides as follows:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CA through section 60CC deals with how the Court determines the best interests of children. This is sometimes referred to as the ‘legislative pathway’. The most relevant to this discrete issue would be the primary considerations in section 60CC(2), and the additional considerations in section 60CC(3), where relevant.
Primary Considerations: Section 60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. In addition, the Court must also consider section 60CC(2)(b) of the Act – the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
The discrete issues relevant to this dispute largely fall with in concerns about the potential for B to be exposed to physical or psychological harm when flying internationally.
I note at this point in my reasons that there is no specific provisions in the Act relevant to international travel, save for Subdivision E of Division 6 of Part VII – being the obligations under parenting orders related to taking or sending children to Australia.
Additional Considerations: Section 60CC(3)
In relation to section 60CC(3)(a), the views of the child, etcetera, the Court refers again to the comments made by Dr A in the expert report.
In relation to section 60CC(3)(b), the nature of the relationship between the child and each of the child’s parents, etcetera, both parents present as having a close and continuing relationship with B. I refer again to the comments made by Dr A in the family report. I also note that B has a half-sibling named K that resides with his father and step-mother.
In relation to section 60CC(3)(c), the extent to which each parent has facilitated an opportunity to participate, etcetera, and section 60CC(3)(ca), the extent to which each of the child’s parents have fulfilled their obligations to maintain the child, etcetera, these provisions are not relevant to the discrete issue.
As to section 60CC(3)(d), the likely effect of any changes, etcetera, and section 60CC(3)(e), the practical difficulty and expense issues, etcetera, the Court acknowledges that high costs involved in B spending time with his father in Country E. The expense in funding the return airfares of B and a travelling companion would be mitigated to some extent by having B travel unaccompanied. In addition, despite reservations about B coping with non-direct flights, such flights may be less expensive given that direct flights are largely limited to Qantas and Country E Airlines and noting that Jetstar does not operate an unaccompanied minor service.[28]
[28] See (accessed 7 January 2020).
As to section 60CC(3)(f), the capacity of each of the child’s parents, etcetera, that is not relevant to the discrete issue before me.
In relation to section 60CC(3)(g), maturity, sex, lifestyle, and background issues, etcetera, I refer to previous comments and, in particular, the views expressed by the expert, Dr A.
In relation to section 60CC(3)(h), this is not a relevant factor, as neither party nor the child identifies as Aboriginal or Torres Strait Islander.
In relation to section 60CC(3)(i), the attitude issues etcetera, that is not relevant to the discrete issue before me.
Similarly, in relation to section 60CC(3)(j), family violence and section 60CC(3)(k), family violence orders, that is not relevant to the discrete issue before me. That said, I refer to previous comments relevant to the past sexual abuse suffered by B and the need for special travel arrangements.
As to section 60CC(3)(l), whether it would be preferable to make the order that would be least likely to lead the institution of further proceedings in relation to the child, strictly speaking that is not applicable as this is the final hearing of discrete travel issues and the Court intends to pronounce final orders.
As to section 60CC(3)(m), any other fact or circumstance, etcetera, save for the issue of costs (discussed below) there are no other facts or circumstances which the Court wishes to refer to that have not already been raised or canvassed in these reasons or are otherwise discussed below.
Findings
This is a difficult discrete issue for the Court to decide. I am satisfied that both parties are genuine in their submissions to the Court. Nevertheless, a decision is needed to break the impasse. Having regard to the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and finds as follows.
When should B should commence travelling as an unaccompanied minor on international flights
It is clear from the final submissions that both parties have taken into account the views of the expert, Dr A. Although Dr A was of the view that B could commence travelling unaccompanied by the age of 13 (which would be in 2020), he later modified his view to recommend a delay in the commencement until the end of the school year.
The Court also notes, with regret, that the Australian Government has presently[29] listed all countries as ‘Level 4 – do not travel’ as part of the Australian response to the Coronavirus (Covid-19) public health threat.
[29] As at 24 April 2020,
Notwithstanding the above, the Court notes that pursuant to paragraph 22(d) of the final orders made 27 September 2012 (as amended on 30 November 2015) B will be spending the first half of the 2020/2021 long summer holidays with the father as it commences in an “even numbered” year. Given that there is already agreement that B’s first unaccompanied trip will be from Country E to Australia, this would, unless otherwise agreed, occur during January 2021. Consequently, the parties’ dispute over this issue is largely de minimis.
Subject to the parties’ agreement that the first flight that B takes as an unaccompanied minor be the return trip from Country E to Sydney, the Court finds in favour of commencing the unaccompanied travel from the end of Term 4, 2020. This is consistent with Dr A’s view. That said, I do not see why any travel arrangements could not be made prior to the end of Term 4, 2020 provided the travel occurs after that date and in accordance with the relevant Court orders.
What conditions should apply if B travels as an unaccompanied minor on non-direct international flights
While the parties have agreed that, where possible, B should travel on direct flights scheduled during daylight hours, they disagree on the circumstances that would apply in the event that B is required to travel on a non-direct international flight from/to Australia. While the Court understands the father’s argument that the utilisation of non-direct flights might be more affordable and flexible, particularly during Australian school holiday periods, the Court shares the concerns expressed by the expert about the possibility that transitions between non-direct flights being potentially unaccompanied.
The Court finds that it is B’s best interests that B only fly unaccompanied on the first leg of any flight from Australia and on the last leg of any fight to Australia. I note that the father proposed such an outcome in any event up until B’s 15th birthday. That said, and unless otherwise agreed, I see no reason to alter this requirement when B turns 16 noting that B would then be flying as an (unaccompanied but registered) ‘young passenger’ rather than as an ‘unaccompanied minor.’
What conditions should apply during international travel when B needs to use a public bathroom or airline toilet
The Court notes that there is an existing order that requires the father “to ensure that he accompanies the child into any public bathroom if the child needs to use the toilet, and stays with the child, but not in the cubicle, until he has finished in the bathroom”.[30] Given B’s circumstances and a prior history of being sexually abused in the toilets at his former school, the Court agrees with the mother’s submission that an order of this type should apply to third parties authorised to accompany B on any international travel. In other words, the Court finds in favour of there being a positive requirement on the authorised third parties.
[30] See paragraph 1.2 of the Orders made by Watts J on 30 November 2015.
That said, the Court notes the mother has agreed that any female third party would only be required to wait outside any male-only bathroom and there is further agreement for the father to request that the relevant airline “provide public toilet accompaniment when the father books the child on an unaccompanied service.”
Whether the scope of B’s therapy/counselling should include “understanding personal boundaries in terms of ‘private parts’”
The mother argues that the proposed therapy for B should include the child “understanding personal boundaries in terms of private parts” in addition to “protective behaviours”. The mother indicates in her submissions that “[t]he father opposes this. It is not clear why”. The Court agrees. While those particular words did not appear in the father’s Minute, no submissions were made in respect of this aspect of this dispute.
The mother submits that this therapy is essential for B “given his history of sexual abuse which he was unable to either resist or report to others” and argues that it “needs to be spelt out in the orders that this is to be part of the therapy he must receive”. The Court agrees and finds that the addition of these words are in B’s best interests.
Whether mother should be under an obligation to keep the father advised as to what therapy/counselling has been arranged
The father seeks an order that would require the mother to keep the father advised of B’s therapy. The father submits that this is appropriate as the mother is B’s primary carer and will be arranging the relevant therapy.
The mother objects to being required to do so. The mother submits that agreed orders require the father to communicate with the therapist and, as a consequence, “he should do so rather than placing an obligation on the mother”.
The Court essentially agrees with both submissions. The Orders, as the mother submits, will require the parties to engage with the relevant psychologist and hence the obligation to do so falls upon the relevant parent. That said, as the mother has the responsibility for organising the relevant therapist, it is appropriate for there to be a requirement for the mother to keep the father generally advised as to the choice of therapist etc.
Whether any unaccompanied international travel should be conditional on B not having any periods of suspension from school within the previous 12 months
The expert, Dr A, was clear in his evidence that there were benefits in having an outcome that any unaccompanied international travel should be conditional on B not having any periods of suspension from school (but not lesser sanctions or punishments) within the previous 12 months.
While the father makes no submission against the order sought by the mother regarding this issue, he does not include that outcome as an order he agrees to in his Minute.
The Court finds in favour of there being the requirement as sought by the mother.
Whether the relevant airline be advised that B has “a diagnosis of ADHD and Autism Spectrum Disorder”
While the father agrees that, when B flies an unaccompanied minor, the relevant airline be informed that B has “special needs” the mother seeks a requirement that the relevant airline be informed that B has a “diagnosis of ADHD and Autism Spectrum Disorder”.
The mother argues that the words “special needs” communicate to third parties:
“nothing about what to expect in B’s behaviour, or how B might be assisted. Surely the aim is to ensure an easier time for B, and making staff aware of the nature of his issues can only be beneficial to him and enhance the assistance he is given by staff while he is in transit.”
The Father argues that the requirement should only be to:
“advise the airline of special needs rather than attempt to explain a diagnosis which may not be understood. B's special needs should be identified but not to an extent to which dissuade an airline from accepting B as a passenger.”
While the Court understands both arguments, I am persuaded by the father’s submission. The Court has concerns that a third party may not fully understand (or may misunderstand) what is meant by medical terms such as ‘ADHD’ (Attention Deficit Hyperactivity Disorder) or ‘Autism Spectrum Disorder’. The Court is satisfied that the term ‘special needs’ alerts the airline sufficiently. The Court finds accordingly.
Conclusion
The Court’s findings are as stated above. In summary, the Court will make orders for the child to commence unaccompanied travel from the end of Term 4 2020 provided the following conditions are met;
·B only fly unaccompanied on the first leg of any flight from Australia and on the last leg of any fight to Australia;
·A requirement on the authorised third parties to accompany B to any public bathroom or airline toilet (with exceptions for female third parties);
·B undertake counselling as recommended by Dr A including “understanding personal boundaries in terms of private parts” in addition to “protective behaviours”;
·The mother advise the father of the therapist chosen for B;
·Travel will not occur on an unaccompanied basis in the event that B has had any periods of suspension from school within the previous 12 months; and
·The relevant airline be informed that B has “special needs”.
The Court notes that orders by consent have been made and include agreement on third parties that can accompany B on any international travel, B being supervised by the father or his partner whilst in their care, with an exception made for the ‘vacation care program.’ Parties will have liberty to provide a copy of these orders to the relevant airline if necessary to arrange travel.
The parties will also have liberty to provide copies of the Expert Reports by Dr A dated 20 September 2017 and 31 October 2018 and a copy these written reasons for Judgment to any treating therapist for B. Additionally there will be orders for B to continue to engage with a psychologist on a regular basis and to be counselled on personal boundary issues as recommended by Dr A.
The Court is satisfied that the above outcome is in the best interests of B.
The final orders will also incorporate the agreed Minute and note that previous final orders remain in effect.
The parties ultimately did not seek orders for costs.[31]
[31] Paragraph 4 of the minute of orders in the father’s case outline sought costs however the final minute of order received on 8 January 2019 did not.
There will be Orders and Notations of the Court to reflect this decision.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 29 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Jurisdiction
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Remedies
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Procedural Fairness
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Expert Evidence
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