Agia and Arruti - [2008] FMCAfam 1188

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
Sahin & Sahin [2008] FMCAfam 1031

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…

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 Agia and Arruti

Details

AGLC: Agia and Arruti [2008] FMCAfam 1188
Case: [2008] FMCAfam 1188
Decision Date: 3 November 2008

CaseChat Overview and Summary

The parties in this case are MS AGIA, the mother, and MR ARRUTI, the father, of three children [X], [Y], and [Z]. The dispute concerns the mother’s application for the children to travel with her internationally to El Salvador, a matter which the father opposes. This matter was heard in the Family Court of Australia.

The legal issues before the Court were whether the children should be permitted to travel internationally to El Salvador without the father’s consent and, if so, what measures should be put in place to ensure the children’s safe return to Australia. The Court had to balance the mother’s right to make decisions about her children’s upbringing and welfare against the father’s right to have a say in such decisions, and also consider the children’s best interests.

The Court found that it was in the best interests of the children to travel with their mother to El Salvador, despite the father’s opposition. The Court accepted that the mother had a strong desire to return to her homeland and that the children would benefit from exposure to their cultural heritage. The Court also found that appropriate safeguards were in place to ensure the children’s safe return to Australia, including the lodgement of their passports with the registrar of the Court. The Court ultimately held that the children’s welfare and best interests would be served by permitting the travel, notwithstanding the father’s lack of consent.

The Court also ordered that the children’s passports be lodged with the registrar of the Court upon the mother’s return to Australia in February 2009, for safekeeping, and that the application and response be otherwise dismissed.

Orders

Orders of the court

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.

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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