Agia and Arruti
[2008] FMCAfam 1188
•3 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AGIA & ARRUTI | [2008] FMCAfam 1188 |
| FAMILY LAW – Children – applicant mother seeks to travel with children to El Salvador – father opposes such travel and refuses to consent to issue of passports for children – assessment of risk involved in such travel – assessment of possible benefits to children of travelling to El Salvador – consideration of Salvadorian background of children – culture and traditions – best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 64B Australian Passports Act 2005, s.11 |
| Kuebler & Kuebler (1978) FLC 90–434 Line v Line (1997) FLC 92-729 |
| Applicant: | MS AGIA |
| Respondent: | MR ARRUTI |
| File Number: | ADC 1604 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 31 October 2008 |
| Date of Last Submission: | 31 October 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 3 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | In Person |
ORDERS
The children herein [X] born in 1998; [Y] born in 2001; and [Z] born in 2003; be permitted to travel internationally to El Salvador with the mother MS AGIA notwithstanding the father MR ARRUTI has not consented to such international travel.
Upon the mother’s return to Australia in February 2009 she lodge the said children’s passport with the registrar of this Court at Adelaide for safe keeping.
The application filed 21 October 2008 and the response filed 29 October 2008 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Agia & Arruti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1604 of 2008
| MS AGIA |
Applicant
And
| MR ARRUTI |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns an application to authorise the overseas travel of three children from Australia to the Central American country of El Salvador. If the application is successful, it will result in the issue of Australian passports for the children concerned, each of whom is an Australian citizen by birth.
The parties to the proceedings are Ms Agia “the applicant” and
Mr Arruti “the respondent”. They are respectively the mother and father of [X] born in 1998; [Y] born in 2001; and [Z] born in 2003.
Ms Agia wishes to take all three children with her to El Salvador for a holiday between 9 November 2008 and 8 February 2009. She wishes to visit members of her family there, principally her younger sister. In addition, she believes that it will be of great benefit to the children concerned for them to be exposed to Salvadorian culture and to be immersed into a Spanish speaking country, particularly as each of them already has some degree of fluency with this language, which she herself speaks as a native born speaker of it.
Ms Agia was born in El Salvador in 1979. She came to this country in 1991 with her mother, brother and sister. Her family were fleeing the civil war which engulfed El Salvador during much of the 1980’s and early 1990’s. She has not returned to the country in the period since, although other members of her family have. She is now an Australian citizen, although she has never formally renounced her Salvadorian citizenship and holds a passport issued by the relevant authority in that country.
Mr Arruti’s life story is similar in many ways to that of Ms Agia.
He too was born in El Salvador and came to this country in 1991 as a result of civil strife. Spanish is his native tongue and that of his parents. Like the mother and the children, he and his family attend a church congregation frequented by people from Central and South America.
The parties married in Adelaide in August 1998. They separated finally on 20 February 2004. An order for divorce was made on 10 June 2008. There are no formal orders in place in respect of arrangements for the children, although the parties entered into an informal parenting plan at the [S] Family Relationship Centre on 18 July 2008.
Pursuant to that plan the children live predominantly with their mother and spend regular periods of time, on weekends, with their father. It seems to be the case that the children have lived more with their mother than the father in the four years or more since the parties separated.
However it also seems to be the case that Mr Arruti and his father, the children’s paternal grandfather, are regularly involved in getting the children ready for school when the mother is at work. It cannot be said that Mr Arruti is a disinterested father. To the contrary, I have absolutely no doubt that he loves each of the children very much indeed and would like to spend as much time as possible with them.
As is to be expected, Ms Agia has many memories of her childhood in El Salvador. She is bilingual in Spanish and English. Her mother speaks Spanish predominantly and English poorly. Mr Arruti and his family also speak Spanish. As a result [X], [Y] and [Z] have grown up in an environment in which Spanish is a living language and in homes with close connections to El Salvador.
Mr Arruti is vehemently opposed to the children travelling to
El Salvadorfor any period of time whatsoever. He considers the children are too young to either appreciate or benefit from being exposed to the culture and people of El Salvador directly. He thinks that the mother has over-estimated the fluency of each of the children in Spanish, particularly [Y] and [Z] and doubts that immersion in a Spanish speaking culture for a period of around three months is likely to enhance their Spanish speaking skills.
However, above all, Mr Arruti is opposed to the proposed trip because he believes El Salvador is currently a fundamentally unsafe place for children of the ages and backgrounds of [X], [Y] and [Z]. He fears that the children will be targets for criminal elements in the country because they come from a wealthy country like Australia and will be readily identifiable as such. Accordingly they may be abducted and held to ransom.
He is particularly concerned that the mother does not propose to stay with family members in San Salvador, the capital of El Salvador, but has arranged to rent a property there. He believes this is both foolish and potentially dangerous. Relatives of the father, who live in
San Salvador, have recommended to him that the mother postpone her trip.
The father puts it as follows in his affidavit material:
“I have recently spoken to my relatives in El Salvador and they have suggested that it is probably not a good time to travel to the country because there is a lot of crime and violence on the streets of the country due to the elections coming up early next year.”[1]
[1] See father’s affidavit filed 27 October 2008.
The mother’s view is that the father’s concerns are overstated, based as they are on second hand information. She acknowledges that, as a poor and developing country, El Salvador is beset by all manner of social problems, including endemic crime. However it is her position that she is a sensible person and a devoted parent. As such, when she is on the ground in El Salvador, she will make a proper assessment of the level of risk to the children and, if she considers it to be too great, she will leave the country with them.
Accordingly there is a deadlock between the parties regarding this important issue. As a result Ms Agia has applied to the court for leave to travel outside of Australia with [X], [Y] and [Z]. Mr Arruti has formally reiterated his opposition to this travel. These proceedings are directed to resolving this issue.
The applications and documents relied upon
The mother relies on the following documents:
i)Her application filed 21 October 2008;
ii)Two affidavits filed on 21 October and 31 October 2008 respectively,
The father relies on the following documents:
i)His response filed on 29 October 2008;
ii)An affidavit of himself filed on 29 October 2008.
The mother has booked and paid for airfares for herself and the three children in respect of a flight which leaves Australia for San Salvador, via Los Angeles, on 9 November 2008. She has deposed that the airfares are not refundable in the event that she is not in a position to board the aircraft concerned with the children. The total cost of the return tickets to Australia is $14,000.00.
At best, the mother might be able to utilise a portion of the tickets to travel to a destination which the father and the court may find to be more acceptable, such as California or some other part of North America. However if this occurs the mother believes she would loose the benefit of up to 35% of the value of the tickets.
Accordingly, from her perspective, there is a considerable degree of urgency about the issue, which only the court can resolve. The itinerary which the mother has provided me indicates that the travel arrangements were finalised on 10 September 2008.[2] It is also the mother’s case that she has long harboured an ambition to travel to
El Salvadorwith the children.
[2] See Annexure 1 to the mother’s affidavit filed 21 October 2008.
Accordingly, at first blush, it seems apparent that the mother has been lax in bringing her application to court. However it is her position that she thought Mr Arruti had agreed to the trip and there would be no difficulty with the issue of passports for the children.
To this end, Mr Arruti concedes that earlier in the year he did indeed sign the necessary forms consenting to the issue of Australian passports for his children and provided these forms to Ms Agia. However he has deposed that he doubted anything serious would come of Ms Agia’s travel plans which he considered to be wishful thinking on her part.
In such circumstances he signed the forms merely to mollify Ms Agia.
For reasons which are not entirely clear to me, Ms Agia sat on the forms although she obviously went ahead with the other necessary steps to enable her and the children to travel to El Salvador. With the effluxion of time, Mr Arruti’s necessary consent to the issue of the passports lapsed. With the actualisation of Ms Agia’s plans to travel to El Salvador, Mr Arruti was no longer prepared to proffer his consent when the forms were represented to him.
Accordingly it cannot be said that the reason for delay is due to any failure of the court and the management of its business. To the contrary the mother’s application was given a first return date a week after the mother had filed it. In such circumstances it would be easy for the court to say the mother had left it too late to ask the court to determine this difficult and controversial issue.
However given the ambivalence Mr Arruti has displayed about the issue and his early apparent consent, I thought it would be unfair to
Ms Agia if the court did not deal with her application, notwithstanding the limited time available to examine the matter. I was also concerned that I would not be provided with all the evidence necessary to properly determine the matter, given the short time frame and the fact that both parties were self represented.
As is clear from this brief description, the parties do not currently have an easy or empathetic relationship with one another. In fact my impression is that Mr Arruti currently feels emotionally wounded at the end of the marriage between the parties. He feels shut out of the process of making decisions regarding the children by Ms Agia, who has a strong and determined personality.
For her part, Ms Agia wishes to make up the time, which she feels has been lost to her through an early marriage and the assumption of the responsibilities of parenthood at a young age, so she can explore the world and develop her own identity. These circumstances do not provide an easy emotional topography against which to determine this highly controversial issue.
Normally an interim issue such is this one is decided on the papers. That is it is decided in a summary or expeditious manner, without the parties concerned giving additional vive voce evidence or being cross-examined about their evidence. As is obvious, this case has evoked strong feelings from each of the parties concerned.
In such circumstances, I decided that the matter should be more thoroughly examined than by means of a conventional interim hearing. Accordingly both parties gave oral evidence and were cross-examined. Although it was regrettable that former spouses were required to cross-examine each other, the mode of hearing adopted allowed me the opportunity to observe each of the parties concerned and form some impression of their veracity and reliability both as witnesses and parents.
Ms Agia is an impressive person. I do not doubt the passionate interest she has in the country of her birth. It is a tribute to her passion and self discipline that, whilst in receipt of a modest wage and having primary responsibility for three young children, she has been able to save a sum in excess of $20,000.00 in order to fund the proposed trip.
I did not think that Ms Agia is to be regarded as a feckless person or an improvident dreamer. She is aware of the dangers inherent in a country such as El Salvador and does not treat them lightly. I accept her assurance that she would do nothing consciously to expose the children to any risk of harm.
Although it is largely the satisfaction of her personal aspirations which have caused Ms Agia to bring this application in the first place, I do not consider her to be a selfish person or more importantly a person who is foolhardy to the needs of others because of her blind desire to do what she wants to do.
Undoubtedly she loves the children concerned and is mindful of their safety. As such I accept her evidence that if she thought, either before going to or whilst in El Salvador, that the country constituted an unacceptable risk for the children, she would not go in the first place or remain there after she had arrived.
Mr Arruti is a pleasant person. I do not doubt the sincerity of his love and concerns for the children involved in this case. He has no personal knowledge of the current situation in El Salvador as he has not returned to the country since 1991, although other members of his family have on multiple occasions.
Nor do his concerns relate to specific incidents which have been reported in the media, either in this country or abroad, about the situation in El Salvador. Rather he relies on what members of his family have told him. These concerns are inchoate and generic. Given his obvious antipathy for Ms Agia, I am concerned that he has not brought a dispassionate mind to the assessment of the risk involved in this case but may be seeking to frustrate Ms Agia’s ambitions to satisfy some emotional need of his own.
The legal principles applicable
Part VII is the part of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. Accordingly the issue of whether the children concerned in this case should or should not travel to El Salvador is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount or most important consideration [section 60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In this particular case, the father place special emphasis on the protection of [X], [Y] and [Z] from harm, which he asserts is likely to befall them in El Salvador because of the criminal elements there. By necessary implication, it seems to be his case that the children’s significant level of relationship with him will be diminished if the children go to El Salvador for a period of around three months as
Ms Agia proposes.
On the other hand, Ms Agia places emphasis on the entitlement of the children to enjoy and experience the culture and language of the country of their parents’ birth and of many of their closest relatives. In addition the children will be able to meet some of their Salvadorian relatives, particularly their aunt.
On her case, [X], [Y] and [Z] will enjoy significant benefits if they are able to travel to El Salvador and be totally immersed in its culture for a period of up to three months. Such travel may consolidate their respective Spanish language skills, the benefit of which may last a life time. In addition it may enhance their sense of personal identity.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In this particular case neither party sought to suggest that any of the children had expressed any particular view regarding the proposed trip to El Salvador [section 60CC (3)(a)]. In this regard I bear in mind the tender years of the children concerned but would generally expect any child to be excited at the prospect of an overseas holiday.
Otherwise the relevant additional considerations in this particular would appear to concern the nature of the relationships the children have with each of their parents; the effect on them of any change in their circumstances; the respective level of parental insight and capacity of each of the parties; and the willingness of Ms Agia to foster the children’s relationship with their father [section 60CC (3) (b) (c) (d) (f) & (i)].
Of particular moment in this case is the direction that the court is to consider the particular background of any child concerned which is taken to include the lifestyle, culture and traditions and any other relevant characteristic of both the child and his or her parents [section 60CC (3) (g)].
It is inherent in the mother’s case that although [X], [Y] and [Z] have been exposed, in their lives to date, to the Australian cultural mainstream, in which English is the predominant language, they are to be regarded as Salvadorian children, at least in part. As such they are entitled to be exposed to Salvadorian lifestyle, culture and traditions in the locale from which they stem, particularly as these are significant aspects of their lives within Australia.
The legal principles to do with a child travelling outside Australia, with one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the child concerned’s ability to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[3]
[3] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·In fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·The degree of risk that the departing parent will not return to Australia.
·Whether the country of travel is a signatory to the Hague Convention on Child Abduction[4] and the likelihood of deviation to a non-convention country.
·The financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[5]
[4] Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980.
[5] See Line & Line (1997) FLC 92-729
Mr Arruti is not legally trained. It does seem to be the case that he has made some inquiries of the relevant government authorities regarding the nature of Australia’s diplomatic ties with El Salvador. He has been told that El Salvador is a signatory to the Hague Convention. This is so. Its execution took effect from 1 January 2003.[6]
[6] See regulation 10 and schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986.
The main thrust of Mr Arruti’s case is that he is concerned about the fundamental safety of the children in El Salvador. For these reasons he opposes the mother’s travel plans. However, he has also raised other concerns he has which relate to his fear that the mother will form a significant relationship with some as yet unknown person in
El Salvadorand so elect not to return to Australia with the children.
Mr Arruti has not asked the court to fix some form of security in relation to the mother’s proposed travel, with the children, outside of Australia. Rather he wishes the court to veto outright the travel involved, although he has said that he is prepared to consider the children travelling to some other location which he considers safer.
The Australian Passports Act 2005 provides the legislative framework for the issue of passports to Australian citizens. Pursuant to section 11(1) the relevant minister is prohibited from issuing a passport for a child unless either each person who has parental responsibility for the child consents to the child travelling internationally; or an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.[7]
[7] See Australian Passports Act 2005 at section 11(1) (a) & (b).
There is no controversy that both Ms Agia and Mr Arruti have parental responsibility for the children concerned in this case. Accordingly I am satisfied that this is not a case which could be resolved through any other of the specific administrative processes provided by the Australian Passports Act.[8]
[8] See Sahin & Sahin [2008] FMCAfam 1031 per Riethmuller FM.
There is an obvious dispute between the parties concerned as to how parental responsibility in respect of [X], [Y] and [Z] is to be exercised. As such the dispute can only be resolved according to the provisions of the Family Law Act.
The Evidence
The mother is full time employee of [E]. She has been employed by [E] since the early part of 2008. She is employed as an [omitted] officer. She is in the process of obtaining tertiary qualifications in [omitted].
Ms Agia was born in El Salvador in 1979. She left the country when she was aged around twelve years of age. Accordingly she has strong memories of El Salvador. In particular she remembers her cousins and a younger sister, who is currently aged twenty five years.
Ms Agia’s parents are separated. Her father lives in San Francisco. It is for this reason that she has been separated from her younger sister for so many years. This sister is employed as a [omitted] at a university in San Salvador. It is she who has made the arrangements for the renting of what is described as a holiday villa or town house in Escalon, a suburb of San Salvador.
As previously indicated, Mr Arruti is particularly concerned about the security of this property, although he has no specific personal knowledge of it. Ms Agia trusts her sister to obtain safe accommodation for her and the children. She has been told the property concerned is fenced and the suburb is safe and frequented by tourists.
Ms Agia is a modest income earner. Her salary is around $45,000.00 per annum. As indicated earlier, the cost of her and the children’s travel to San Salvador is A$14,000.00. She has outlaid a further US$6,000.00 to cover accommodation and other expenses whilst she is overseas. Accordingly the money invested in the trip represents a significant personal investment for her.
It is the mother’s case that she has been planning and saving for the trip for some years now but began taking active steps in respect of it in the early part of 2008. As previously indicated, I accept her evidence that she thought that she had secured the father’s agreement to the holiday.
The mother’s mother and other Salvadorians resident in Adelaide known to Ms Agia have returned to El Salvador from time to time. It is the mother understanding from them that although the country has its risks, particularly in the form of violent crime, these risks can be managed if one is sensible and aware of potential dangers.
The mother has taken out appropriate travel insurance for herself and the children. She has also undertaken the necessary course of immunisation for herself and the children. I accept her evidence that she has taken a three month leave of absence from her employment at [E] but her position will remain open to her on her proposed return to Adelaide on 8 February 2009.
The children concerned attend [S] Primary School. The mother has advised the school authorities of her plans for the children to be overseas at the end of the current school year and the beginning of the next. They have not specifically objected to the mother’s proposals.
The mother is currently living in rented accommodation in [S]. She has arranged to pay the rent on the property, in advance, for the three months she hopes to be away. Her sister will mind the property on her behalf. Otherwise, after payment of her travel expenses, she has no savings to speak of. She does however have many items of personal property which she will leave behind her in Australia.
It is the mother’s case that she speaks idiomatically perfect Salvadorian Spanish. As such she will pass as a native Salvadorian in the country. I accept that this is so. It is her case that the most likely targets for criminal abductions are gringos or obviously wealthy Salvadorian expatriates. It is her case that she does not conform to either of these stereotypes and nor do the children.
Mr Arruti asserts that the mother overstates the degree of fluency of the children in Spanish. It is his position, to which the mother accedes, that the children are likely to talk amongst each other in English. It seems likely to me that the children are habitual English speakers, although I accept that each of them, particularly [X] have a ready facility with Spanish through exposure to their grandparents on both sides of their family. In such circumstances, it seems likely that each of them has the potential to be bi-lingual in English and Spanish, like both of their parents.
It is the mother’s case that the bloody and brutal civil war in
El Salvadorhas been concluded since 1992 and the country is now to be regarded as a democracy. I accept that this is so. However it remains a poor country, which retains the scars of its dislocation through internecine strife in the 1980’s and early 1990’s.
In her own words the mother puts her case as follows:
“As a Salvadorian by birth I would like this opportunity to take my children with me to experience my background and culture as well as to have the chance to meet the rest of my family whom I haven’t seen for 18 years.
I speak Spanish fluently and I’m very involved with the Salvadorian Community in Adelaide having volunteered in 2007 as Administrator for [omitted], a Latin-American agency under the Community Housing of South Australia.
I am fully aware of the degree of caution I must take when travelling to El Salvador and I am fully confident that as a mother I will always do nothing but take the best precaution to ensure my children’s safety as well as my own. I have full support from my family in El Salvador and they have organised a home in San Salvador’s best and safest location and well know in Australia by the Latin-American community, Casa Husespedes Australia.
If I am not granted consent to have the passports issued, I would have to cancel the holiday and loose a lot of money as a result…”[9]
[9] See mother’s affidavit filed 31 October 2009 at paragraphs 12-15.
Mr Arruti acknowledges the appeal of a visit to El Salvador for Salvadorian émigrés. He himself would like to visit the country, as his parents have done on no less than three previous occasions. It is his position however that his relatives have always stayed with Salvadorian residents when they have returned to the country and so have been in the company of people who are knowledgeable about the level of danger there.
The father does not point to any specific source of threat for the children in El Salvador. He has not directed my attention to any extraneous source of information about the current level of security of tourists in the country. Rather he deposes that his relatives have told him it is “probably not a good time to travel to the country because there is a lot of crime and violence on the streets of the country…”.
Mr Arruti is particularly concerned that the mother and children will be obvious tourists in El Salvador and so will inevitably come to the notice of criminal gangs there. He has no confidence in the security of Casa Husespedes. By necessary implication, he describes the mother as foolish and headstrong. For the reasons already provided that was not my impression of her.
The mother deposes that she has made inquiries with the Department of Foreign Affairs and Trade regarding their recommendations for Australian citizens currently considering travelling to El Salvador. The Department does not specifically direct that Australians should not travel to El Salvador but it does advise them to exercise a high degree of caution. It is implicit in the mother’s case that she believes she is capable of exercising this high degree of caution.
Conclusions
El Salvador is a country of around six million people, situated on the Pacific Coast of Central America. It has been independent from Spain since 1821. It is a long way from Australia and does not share many cultural references with this country. I do not think that it can be said that it is commonplace destination for Australian travellers or holiday makers.
Perhaps, for this reason, references to El Salvador in the popular media in Australia are few and far between. As a country, it does not resonate in the popular imagination as a particularly dangerous place like say Iraq or Afghanistan or even the Island of Bali, in the Republic of Indonesia, which suffered notoriety as a result of terrorist attacks committed, in part, against Australian citizens in 2002 and 2005.
However being foreign and largely unknown to them it would be a natural response of many Australian to approach the country with caution and some level of mistrust. It is easy to fear the unknown.
This is a case about risk and the assessment of risk. The risk has two specific components. Firstly what is the degree of risk which will attach to the children concerned if they travel with their mother to
El Salvador? Secondly what is the degree of risk that Ms Agia will not return the children to Australia, as she promises, in February 2009?
Ordinarily the legal process of adjudication deals with whether it can or cannot be established, to the relevant standard of proof, that a particular event did or did not occur. Appropriate consequences flow from a particular finding or failure to find a particular state of affairs.
In this case neither party has recently travelled to El Salvador and so neither is able to give any specific evidence of what the current circumstances are in that country from their own personal knowledge. Accordingly, too a large degree, it is a matter of conjecture for me what is the likely degree of risk involved in the children travelling to
El Salvador. In this regard I am placed in no different circumstances to an ordinarily prudent Australian citizen, who knows nothing of the country concerned but who is considering travel there.
Risk is a necessary incident of many aspects of human endeavour. There is a degree of risk in flying – the chance of an aircraft crashing cannot be definitively ruled out. There is a degree of risk in being outside in a thunder storm – again the risk of being struck by lightening cannot be definitively ruled out.
Most individuals are prepared to accept the risk of flying. Many would accept the risk of being caught in a thunderstorm. There is obviously a greater degree of risk, to an individual, of flying in a hang glider in a thunder storm – the risk of both crashing and being struck are exponentially increased. Few would countenance such a risk.
Individuals assess risks to themselves and their families as part and parcel of their lives. Individuals are prepared to accept some risks
and reject others. When parents have separated, in difficult and acrimonious circumstances, as have the parties in the present case, it becomes difficult, if not impossible for them to discuss the degree of risk involved in any particular course of conduct for their children and agree on proportionate responses to the degree of risk involved.
In addition individual parents are likely to have different views about the nature of the risk involved in any proposed course of conduct for their children. Sadly, it is not unknown that the post separation politics in play between parents has a role in determining how any particular risk is perceived by the parties concerned.
So it seems to me to be in this particular case. For obvious reasons the mother seems the degree of risk involved as a manageable and acceptable one. The father sees all manner of dangers in the mother’s proposals.
For my own part, I accept that there must be some degree of risk involved in the children travelling to El Salvador. It is a poor country in South America. As such it is likely to have a significant class of desperate and disaffected persons, who are prepared to resort to violent crime.
In addition, it is not likely to have the policing resources of a wealthy first world country. The same can be said of the vast majority of countries in Central and South America and indeed in many other parts of the world. Yet many Australian citizens travel frequently to such destinations and take their children with them.
The duty of the court is to quantify the degree of risk for the children of travelling to El Salvador in a rational and objective manner and determine whether the particular risk of harm is, in all the circumstances prevailing in the case concerned, unacceptable. That is not the same exercise as determining whether there is any risk of harm. There will always be some risk in any course of human conduct no matter how anodyne.
In making some assessment of the risk, it seems appropriate that I should refer, as the mother has done, to sources extraneous to the parties themselves. In this regard it seems apposite to have reference to the travel advice webpage offered by the Department of Foreign Affairs and Trade.
The Department has five levels of advice for Australian travellers in respect of travel to overseas destination. These range from the lowest level of advice: Be Alert to own security through to the most serious admonition Do Not Travel.
In the former category are countries such as Norway, Switzerland, Chile and New Zealand. In the latter, countries such as Iraq, Afghanistan and the Central African Republic.
In between these two categories are three others: Exercise Caution; High Degree of Caution; and Reconsider your Need to Travel. In the first of these categories are such countries as the United Kingdom; France; Germany; and the United States of America.
I do not think that many reasonable Australian parents would regard the risks inherent in these countries to be unacceptable ones for children of the ages of the children in this case. Of the countries of South and Central America, Argentina and Ecuador are grouped in this category.
El Salvador is categorised a country in which Australian travellers are directed to exercise a high degree of caution. The advise reads as follows:
“We advise you to exercise a high degree of caution in El Salvador because of the high levels of serious crime. Pay close attention to your personal security at all times and monitor the media for information about possible new safety or security risks.
Violent crime including armed robbery, banditry, assault, kidnapping, sexual assault, and carjacking is common, including in the capital San Salvador. Downtown San Salvador is particularly dangerous, particularly at night. At all times avoid wearing jewellery and using expensive cameras, video cameras or portable music players. Avoid travelling alone and after dark when security risks associated with violent crime are heightened. Victims have been seriously injured when resisting perpetrators.
Take particular care of your belongings at bus stations, airports, tourist places and on public transport.
Travelling on roads outside of San Salvador at night is dangerous. Criminals are known to target the road between San Salvador and the international airport and public buses. There have been reports of violent attacks on motorists travelling between El Salvador and Guatemala, particularly on the Guatemalan side of the border. Climbers and hikers in remote areas have also been the target of criminals.
Using ATMs on the streets puts you at high risk of robbery.”
The mother deposed that she had consulted this webpage and had taken on board its advice. She seemed to me to be aware of the dangers likely to be inherent in a city such as San Salvador, particularly in its down town areas and at night. In particular she did not seem to me to be the sort of person who would court trouble.
However the fact remains that El Salvador is a dangerous country, particularly its capital San Salvador. The Wikipeidia reports as follows:
“In the past years El Salvador has experienced high crime rates including gang-related crimes and juvenile delinquency. Some say this was as a result of the deportation of thousands of Salvadorans from the U.S., the majority of whom were members of Mara Salvatrucha in the mid-90’s… In 1996, San Salvador was considered the second most dangerous city in the western hemisphere according to statistics.
Today El Salvador experiences some of the highest murder rates in the world, it is also considered an epicentre of the gang crisis, along with Guatemala and Honduras…
In the first half of 2007 La Policia Nacional Civil of El Salvador statistics showed lower numbers in homicide, and extortions as well as robbery and theft of vehicles. In 2007 homicides in El Salvador had reduced 22%, extortions reduced 7%, and robbery and theft of vehicles had gone down 18%, all in comparison with the same period of 2006. Despite the lower numbers of homicides in the first half of 2007, El Salvador continues to have the highest homicide rate in Central America and one of the highest in Latin America.”
These are not comforting statistics. Yet the Australian Government does not positively deter its citizens from travelling to El Salvador.
El Salvadorshares its travel advisory category with such countries as Guatemala; Honduras; Venezuela; Brazil; Peru; Nicaragua; Columbia; Mexico and Bolivia.
The children concerned have a close and loving relationship with their mother. I find her to be a good and insightful parent. As such, once she arrives in El Salvador, if she believes the degree of risk the country poses to the children is so great as to be an intolerable one to take, I accept her evidence that she will depart the country.
I do not find that the mother wishes to travel to El Salvador because she wishes to diminish the level of relationship [X], [Y] and [Z] have with their father. The children have been able to maintain their contact with their father since the parties separated and know and love him well. As such, given the ages of the children concerned now, I do not think a holiday away from him for a period of around three months constitutes a serious threat to the level of meaning the children presently have in their paternal relationship.
The mother, like the father, is a Salvadorian by birth. It is right and natural that she would want to revisit the country where she has significant connections and which she remembers from her childhood. It is clear to me that Salvadorian culture and lifestyle remain alive in her home, the father’s home and the homes of both the children’s paternal and maternal grandparents. As such [X], [Y] and [Z] are to be regarded as at least in part Salvadorian children.
In my view, there is much to benefit these children in visiting
El Salvador, particularly in terms of the consolidation of their Spanish speaking skills. True it is that [Z] in particular may have imperfect memories of his visit to El Salvador but photographs will be taken and stories will be told to him about the trip and as such it will become part of his personal lore and connect him with his family in El Salvador and reinforce his sense of identity, as it will do for the two older children.
It is important to the children that their parents have as cooperative a parenting relationship as possible. If the mother feels that her aspirations to take the children to El Salvador are thwarted by the father, after he had earlier consented to the trip, she is likely to feel highly resentful towards the father, particularly at the possible waste of her life savings. This cannot be good for the parties’ parenting relationship.
There is risk in the children going to El Salvador. However after balancing all the relevant matters, I have come to the conclusion that the positives for the children outweigh the potential negatives. They will be away from school for a fairly short period of time. They are likely to learn a lot about the country of their family’s origin by direct exposure to it. These benefits are likely to last a life time. I do not think that Ms Agia is likely to expose the children to any gratuitous level of risk.
The mother is a Salvadorian in appearance, as are the children. They will not obviously stand out as foreigners. Given the advice proffered by DFAT they are unlikely to go to any area frequented by gangs. The mother is likely to accept the Department’s advice to be vigilant about her safety and not allow herself or the children to engage in any obvious displays of wealth.
The mother is not a fool. She would not willingly expose these children to even a modest risk of harm. She has connections, in the form of her sister, in San Salvador. The children’s aunt has pre-arranged accommodation in the city. As such, she has a foot on the ground in the city concerned, having lived there for some years.
I accept she is likely to have personal knowledge of the degree of risk involved in living in San Salvador and will take appropriate steps in regards to it and advice the mother appropriately. I do not think she is likely to be cavalier about the possible risks to which her kith and kin will be exposed. As such, I have no reason to think that this accommodation will not have appropriate security for both the mother and the children.
The mother is not in a strong financial position. In my assessment it is clear that she has made her life in Australia and sees her future here, where she has a good job, a home and where her mother and siblings live. On balance, I accept the mother’s assurances that she intends to return to her life in Australia, when she says she will. I think it unlikely that she will form such a significant bond, with a person as yet unknown to her, that she will jeopardise the children’s future happiness in Australia and dishonour her undertaking to return to this country.
As such, I am satisfied that it is not necessary to make an order requiring the mother to deposit a sum of money with the court before she leaves this country. The greatest guarantee the court can have that the mother will return to this country are her strong connection with Australia and Adelaide in particular.
In addition, as El Salvador is a signatory to the Hague Convention, there exist formal mechanisms by which the Australian Government may assist the father to secure the return of the children concerned to Australia, which is obviously the place of their habitual residence.
For all these reasons the orders of the court will be as set at the commencement of these reasons for judgement.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Brown FM
Deputy Associate: J Williams
Date: 3 November 2008
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