Wilde and Wilde (No.2) - [2020] FCCA 944

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
Wilde & Wilde [2016] FCCA 944

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 16^th birthday if he is travelling unaccompanied), provided that:
(a)the child has undertaken counselling as recommended by Dr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilde and Wilde (No.2)

Details

AGLC: Wilde and Wilde (No.2) [2020] FCCA 944
Case: [2020] FCCA 944
Decision Date: 29 April 2020

CaseChat Overview and Summary

This matter concerned orders made by Judge Monahan in the Federal Circuit Court of Australia regarding the international travel arrangements for a child, B, born in 2007. The dispute centred on how B would travel to spend time with his father, particularly concerning the conditions and supervision required for such travel, and the child's readiness for unaccompanied travel. The court was also required to consider B's Autism Spectrum Disorder (ASD) and its implications for his wellbeing and travel arrangements.

The court was tasked with determining the specific conditions under which B would travel internationally to spend time with his father. This included whether B could travel as an unaccompanied minor, the requirements for accompanying persons on flights, and the supervision arrangements during his time with the father. Furthermore, the court needed to address the psychological and therapeutic preparations necessary for B, especially in relation to his ASD and the prospect of unaccompanied travel, and how these preparations would be facilitated and monitored by both parents.

In reaching its decision, the court discharged a previous order and made detailed new orders concerning B's travel. These orders stipulated that flights should be direct and during daytime hours where possible. Crucially, B was to be accompanied on all air travel by specific individuals until the end of Term 4 2020, after which he could travel as an unaccompanied minor, subject to a comprehensive list of conditions. These conditions included the completion of recommended counselling and therapy, specific flight arrangements, a clean school record, and notification to the airline of B's special needs and a request for public toilet accompaniment. The court also ordered that B continue to engage with a psychologist regarding his ASD and preparation for unaccompanied travel, with both parents to participate in meetings with the psychologist.

Orders

Orders of the court

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;

(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;

(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

10.

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.

11.

The parties be at liberty to provide a copy of these Orders to the relevant airline for the purposes of international travel arrangements.

12.

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.

13.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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