A and B
[2004] FMCAfam 558
•10 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & B | [2004] FMCAfam 558 |
| FAMILY LAW – Mother wishes to travel to Colombia with child – father withholds consent to issue of passport – DFAT travel advice warns against travel to Colombia – assessment of risk to child – whether risk is unacceptable. Passports Act 1938 (Cth), s.7A B and B (1988) FLC ¶91-978 |
| Applicant: | A |
| Respondent: | B |
| File No: | LNM 1846 of 2004 |
| Delivered on: | 10 September 2004 |
| Delivered at: | Devonport |
| Hearing Date: | 8 September 2004 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Ms J. Dean |
| Solicitors for the Applicant: | McVeity and Associates |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Walsh Day Williams |
ORDERS
That the child C (“C”) be permitted to leave Australia on or before
1st December 2004 for the purpose of travel to Colombia via the United States and return to Australia via Spain, France and the United Kingdom.That the Department of Foreign Affairs and Trade be requested to issue a passport to C notwithstanding that his father has not given his consent to the issue of a passport.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
LNM 1846 of 2004
| A |
Applicant
and
| B |
Respondent
REASONS FOR JUDGMENT
Reasons
In this matter the applicant is A ("the mother") and the respondent is B ("the father").
Background
The applicant is currently 43 years of age. The respondent is her former husband and is currently 51 years of age. Both have Australian citizenship, however, both migrated to Australia from Colombia in South America.
The parties were married on 29 July 1989. They separated on 24 February 1997 and were were divorced on 1 September 1998. There is one child of their relationship, C, who is aged 14 years and is the subject of these proceedings.
On 18 January 2003, the mother married her current husband, Mr E. They do not have any children together and C lives with them in Tasmania.
On 19 May 2000, Brown J made orders in the Family Court of Australia as follows:
a)that the father and mother share the joint responsibility for the long-term care, welfare and development of C;
b)that C reside with the mother; and
c)that the mother have sole responsibility for day‑to‑day care, welfare and development of C.
Contact orders were also made on that day but it is common ground between the parties that the father has not had any contact with C for nearly two years, that is not since 24 December 2002.
It is also common ground that the father has not paid any child support for C since December 2002.
On 16 April 2004, the mother wrote to the father seeking his consent to the issue of a passport for C, in order to visit family in Colombia. She got no response to that letter, so she sought legal advice. Her solicitors then wrote to the father on 9 July 2004.
On 19 July 2004 the mother received a letter from the father in which he said:
I strongly disagree that C travel to Colombia because of concerns for his safety and welfare in the political and unstable climate of the country and its regime of insecurity, especially overseas' visitors.
I fell (sic) C could be extremely vulnerable at this stage and age in his life.
On 27 July 2004, the mother and her new husband made bookings for the travel of themselves, C and the mother's 21‑year‑old daughter of an earlier relationship. A summary of those flight bookings is as follows:
a)1 December 2004, from Australia to Los Angeles and Miami in the United States;
b)2 December 2004, from Miami to Bogota in Colombia;
c)18 January 2005, from Bogota to Spain;
d)21 January 2005 from Spain to France; and
e)23 January 2005 from France via England to Australia, arriving (no doubt, thoroughly exhausted) on 25 January 2005.
Their bookings are confirmed and I am told that payment must be made in late October.
Applications
The mother filed an application in this court on 9 August 2004. She seeks an order that the Registrar of this court be empowered to execute an application for a passport for C in lieu of the consent of the father.
The father opposes the application and in his response he seeks a number of orders, summarised as follows:
a)That the applicant be restrained from taking C to any country within South America until he is 18;
b)That his solicitors make an application for C's passport.
c)I just pause to note that I think that is an unusual order, because I do not know how his solicitors can make an application for C’s passport.
d)That his solicitors be the custodian of C's passport until he reaches 18 years and that the mother surrender that passport to his solicitors' office within seven days of the return to Australia from any overseas' trip until C is 18 years old.
e)That for any and every trip on which the applicant takes C outside Australia up until he is 18, she is to make her itinerary known to the respondent through his solicitors; produce records of payments of airfares, tickets and a copy of her itinerary; have her travel agent confirm separately in writing her travel itinerary; and if any changes are made to the itinerary either prior to the departure or whilst overseas, a copy of that amended itinerary is also to be provided.
f)That the applicant be restrained from applying for C to have dual nationality.
The Law
Because the parties share joint responsibility for the long-term care, welfare and development of C, the consent of both parents is required for the issue of a passport. In this regard I refer to section 7A of the Passports Act 1938 and to subsections (2) and (8) in particular. Subsection (2) provides, however, that if there is an order of the court permitting a minor to leave Australia, a passport may be issued.
In essence, therefore, the mother's application (although not worded in that way) is for an order that C be permitted to leave Australia for the purposes of travelling to Colombia, rather than for someone else to sign a passport application in lieu of the father.
The father is clearly not opposed to the issue of a passport per se. He is opposed to a passport being used for the purpose of travel to anywhere in South America. In his affidavit he says that the reason why he wants a ban on the whole of South America is because it is possible to cross borders into Colombia.
In this matter I must decide whether or not I should override the clear responsibility given to the father by the Family Court orders, albeit it jointly with the mother, in relation to the long‑term care, welfare and development. In that regard, I refer again to subsection (8) of section 7A of the Passports Act.
The father, by virtue of that joint responsibility contained in the first order of 19 April 2000, is clearly a person who has “caring responsibility” for C as that term is defined in section 7A(8) of the Passports Act.
It is the father's clear position that there is a risk to C in going to Colombia. In my view, the court must weigh up the risk and assess whether or not the risk is unacceptable.
Clearly if the court finds that the risk is unacceptable then the court must not permit the issue of a passport to C to enable him to travel to Colombia.
In this regard, although the factual circumstances are completely different, it is my view that the court can take some guidance from the High Court decisions of B and B (1988) FLC ¶91-978 and M and M (1988) FLC ¶91-979.
While I must weigh up the risk to C in order to assess whether it is unacceptable or not, it is also clear that his best interests are paramount. In that respect, I must have regard to section 68F(2) of the Family Law Act 1975.
Discussion
In this matter, the mother says:
E, C and my daughter, D, aged 21, and I have been planning a world trip for approximately six months. Annexed to this affidavit and marked with the letter “F” is a true copy of my itinerary dated 27 July 2004. The holiday has been organised through
X Travel Centre.
I have already briefly summarised the itinerary set out in her affidavit.
She goes on to say and I am quoting from paragraph 14 onwards:
I'm a Colombian citizen. I have dual citizenship as I'm also an Australian citizen. I have not lived in to Colombia for 15 years. Part of the intention behind the holiday was so that my family and I could visit my homeland and family. Of my immediate family my mother, 4 sisters and 1 brother live in Calarca a town in Quindio (a 30 minute flight from the capital city, Bogota). I also have many relatives consisting of aunts, uncles and cousins. B’s immediate family as well as some of his nieces live in the same town.
I wish to reunite with my family and to introduce C to his extended family. C met his maternal and paternal grandmother in or about 1996 when they came to Tasmania. D has travelled to Colombia on one previous occasion for 2½ months. She travelled on her own and stayed with both her maternal and paternal family units.
C, D and I are all Colombian in appearance. We have dark hair, olive skin and brown eyes. I believe that westerners are targeted as the rebels believe that anyone western must be wealthier than the local citizens. C will be travelling with myself, E and his older sister, D. E is 6 foot tall and weights 103 kgs.
I am aware that travel to isolated places could be dangerous. I am particularly aware that travel to South Colombia (the Amazon jungle) is dangerous. We have no intentions to visit any of these places or any place which would pose an unacceptable risk to our safety.
We intend to stay for approximately for approximately five weeks in Colombia with my family at Calarca. They will accompany us on most of our day trips. We have planned a 10 day trip to the Atlantic coast where we will stay in a holiday apartment. My brother-in-law arranged the accommodation and has told me the apartments are patrolled by security. The apartments are also in a secure compound patrolled 24 hours a day, accessible by passing through a manned security gate.
If C cannot travel we will abort our trip. C is very excited about our holiday and I say that he would be extremely disappointed if he is unable to travel and meet his extended family. He has been emailing our family in Colombia on a weekly basis. He has told me on a number of occasions he is looking forward to meeting his extended family. On many occasions he has said, "Do they love me the same way as they love D?"
The father's affidavit was in large part struck out. However, in the admissible part of his evidence, he says:
I declined the applicant's request to sign the passport application for C because I feel that it is extremely unsafe for C to travel to Colombia. I would like to make it clear that it is not my intention in any way to limit C's contact with his extended family or to stop him from seeing other countries of the world. I am merely looking out for my son's safety.
The father annexed various documents to his affidavit and the only document that I admitted was the Department of Foreign Affairs and Trade (DFAT) Travel Advice issued on the Internet on 7 September 2004 in relation to Colombia. I note from that advice that the advice was unchanged since 20 April 2004.
The DFAT Travel Advice is a very long document, and I will quote from that part which starts with the heading “Safety and Security”.
I will do that because essentially what appears above that is then repeated again in the section under “Safety and Security”.
The document says:
Australians are advised to defer non-essential travel to Colombia. In view of the ongoing risk of terrorist attacks, Australians who consider their presence in Colombia to be essential should exercise extreme caution and keep themselves informed of developments that might affect their safety. Australians should also avoid demonstrations, large public gatherings and roadblocks.
Guerilla and paramilitary activity are widespread in Colombia and armed clashes involving the Colombian military, rebel groups and drug traffickers does occur on a regular basis. Common crime and drug trafficking are prevalent.
Incidents of violent crime, including bombings, kidnappings and murder against Colombians and foreigners alike are common. In the light of the 15 November bomb attacks in the Zona Rosa area in Bogota, Australians should be particularly vigilant in the Zona Rosa and Parque 93 areas as well as other commercial and public places, including – but not limited to – nightclubs, restaurants, hotels, bars and shopping centres. Foreigners, multinational interests, public facilities and transportation hubs have been targeted. Road travel outside major centres, especially at night, should be avoided and travel between the major cities should only be by air.
Kidnapping for ransom is a serious problem in Colombia especially in rural areas, but also increasingly in major, urban centre. Foreigners, including children, have been kidnapped and murdered.
Criminals using incapacitating drugs to assist with robbery are known to target foreigners. The drug may be administered through food, drinks, aerosols, cigarettes, chewing gum or in powdered form and renders the victim disorientated and compliant; it can also cause medical problems including loss of consciousness. By way of example, after being approached for directions by an individual, victims have had powdered drugs (concealed in a piece of paper) blown in their face. Foreigners have also been robbed by criminals posing as bogus police officers asking to check documentation and/or foreign currency.
Petty crimes such as pick‑pocketing are also prevalent especially at the airport in Bogota and around hotels. The incidence of quickie kidnappings has also increased. The victims are abducted off the street, transported to ATMs and forced to withdraw funds often by strangers offering assistance.
Australians should only carry sufficient cash for their daily needs, secure their valuables against theft and avoid displays of wealth at all times. Photocopies of valuables such as passports, tickets, driving licences and travel cheques should be kept separately.
The Colombian government has implemented geographical zones of "rehabilitation and consolidation" in which movement can be restricted. Information about the specific zones and the procedures foreigners, including Australians, need to follow in seeking permission to enter or remain in a zone may be obtained from the Colombian Ministry of the Interior or the relevant departmental Governor.
There is material in the DFAT Travel Advice relating to entry and exit requirements, health issues and the local foreign customs and the like, but I do not need to refer to those in these Reasons.
In his affidavit, the father went on to say:
It is true C is Colombian in appearance. However, he is not fluent in Spanish and can't sustain a conversation in Spanish……. Also, as C is an English speaker, he would stick out as being a foreigner and would therefore be very vulnerable and an easy target for kidnappers.
In paragraph 7 he said:
I note that the applicant also stresses that she will not travel to isolated places in Colombia, however, it is not just the isolated places she needs to be wary of. …… Not only does the applicant's family live in Calarca, but some also live in Bogota, Medellin and Gali.
The father then concludes his affidavit by clearly putting his position in relation to the risk. He says quite succinctly:
I simply do not think having C travel to Colombia is worth the risk.
When the mother was cross‑examined he confirmed that the mode of transport between the different parts of Colombia would be by air. She confirmed that she would be in regular contact with her relatives and that there have been no massacres in the areas where her relatives reside.
I was impressed by the mother's honesty because she freely admitted that an uncle had been murdered in Medellin in 1991. However, I note that, although the father says the mother has family in Medellin, there is no evidence of any plan by her to go there.
The father's counsel pressed the mother to admit that one might feel safer in Queensland than in Colombia. However, there is no proposal to go to Queensland instead of Colombia so I am not sure how that helps me. The risk in Colombia is the issue, and I readily accept that as a general rule the risk in Colombia is greater than the risk in Australia.
The mother's evidence was that rebels are generally in the jungles and those jungles are far away from where she intends to go. She said also that the area where she would be going is comprised of coffee plantations. She indicated how high the coffee plants grow and indicated that the rebels really would have no cover in which to hide. No contrary evidence was given by the father.
I also note that the specific areas mentioned in the mother's affidavit are not mentioned in the Department of Foreign Affairs Travel Advice.
Conclusions
I must conclude that Colombia is an inherently more dangerous country than Australia. However, it is a large country and my inquiries reveal that the population is approximately 40 million. I conclude that most Colombian citizens generally live in peace and harmony.
However, there is an increased danger to foreigners because they stand out as being different and probably stand out as being wealthier than the local population. In relation to this, the mother's new husband will be able to be clearly identified as a foreigner. However, he will presumably be among the friendly parties that they are intending to visit and there is no suggestion that he would unwisely or deliberately put himself in a position of danger.
In this matter I was referred by counsel for the father to the decision in Genish-Grant v Director-General, Department of Community Services (2002) FLC ¶93-111. That was a Hague Convention case and it involved the possible return of children to Israel at a time when a DFAT Travel Advice clearly recommend against travel to Israel. In that case, the mother had brought children to Australia, ostensibly on holiday. She then refused to return the children and hence the Hague Convention proceedings were commenced.
There are, however, some significant differences between that case and this case:
a)firstly, in this particular case, it is not intended that C live in Colombia – a visit of five weeks is intended; and
b)secondly, the father in that case, who was in Israel, was clearly very involved in the children's lives, whereas in this case, the father has had no involvement in C's life since 20 December 2002.
I have had the opportunity to view two other decisions in which departmental travel warnings were considered; they are both decisions of the learned Federal Magistrate Ryan.
In the recent unreported decision in the Federal Magistrates Court at Parramatta of Smith v Kirio [2004] FMCAfam 353, Ryan FM was considering the risk to a child (by the name of N) remaining in Papua New Guinea for a limited time. In her decision in that case, she said the following:
I must consider the risk issues. The father contends that the child is at risk of harm by being in Papau New Guinea. Attached to his affidavit is a current travel advisory warning issued by the Department of Immigration and Multicultural Affairs warning Australians travelling to Papau New Guinea. Yesterday the father's counsel emphasised that health risks required vaccination, and there was no evidence that N has been vaccinated against the specific risk identified in the travelling warning. Counsel identified the risks summarised in the travel warning and said that they all propose an immediate risk of harm to N. This is a question of degree. I accept the submission made by Ms W yesterday that the primary purpose of the travel warning is to advise Australians travelling overseas of any precautions they need to take in order to be safe. N is with her mother. Her mother is from Papau New Guinea. They are living with family, and as I have already found, this is N's fourth trip to Papau New Guinea. Indeed N was born in Papau New Guinea with her father's consent and cooperation. There is no evidence before me that on any of the trips that N has made to Papau New Guinea she has been exposed to harm or harmed. While I accept that there is a risk of harm to N by being present in Papau New Guinea, that risk is moderated by the fact that she is in Papau New Guinea with family. The risk of harm is not so great that she should immediately return to Australia, where I am satisfied there is no comparable.
In the matter before me, C has not ever been to Colombia, but his sister has and that evidence is unchallenged. She travelled there and stayed there with relatives for two and a half months. I think it is reasonable to infer that she returned unharmed to Australia.
In an earlier unreported decision of McKay & Taylor [2003] FMCAfam 204, Ryan FM also had cause to consider a DFAT travel warning. The father in that case had applied for interim orders to prevent a child from being returned to Hong Kong. He alleged that the SARS epidemic of that time posed an unacceptable risk. Ryan FM said:
The Family Court has previously accepted that this mother is a parent who makes sensible, child focused parenting decisions and I am satisfied that she will continue to do so. There is no evidence upon which I would conclude that she would abandon a prior history of competent parenting in favour of decisions that would place her son at risk.
I must conclude that the mother in this case is no different. Nowhere in his affidavit or his oral evidence does the father suggest that the mother does not properly care for C. Nowhere does he suggest that she is in anyway negligent in relation to C’S safety.
I must weight the risks in this matter against the benefits. The mother wants K to get to know his wider family. He has wider family on both sides in Colombia, and in the town of Calarca in particular.
In Bright and Bright v Bright and Mackley (1995) FLC ¶92-570, the late Treyvaud J said at page 81658 that: “as a matter of general principle, children develop better when they recognise that they have a place not only in the home in which they live but in the wider family”.
He also said “that it is very important for children's proper upbringing and development that they have contact with the much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family”.
Section 68F(2) requires me to have regard to the wishes of the child. The unchallenged evidence is that C is excited about going and will be extremely disappointed if he cannot go.
It is clear that he does not currently have a good relationship with his father and I have no doubt that if the court now stops him going he will know that it is the result of his father's action and that would only serve to worsen his relationship with his father.
Having weighed up all the factors I conclude that, although there is a risk involved in the trip, that risk is not an unacceptable risk and there are obvious benefits that will flow to C from the trip.
I will therefore order that C be permitted to leave Australia for the purpose of travel to Colombia and that DFAT be requested to issue a passport to C notwithstanding that his father has not give his consent.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: