V & v

[2004] FamCA 1074

[2004] FamCA 1074

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

No. SYF.2330 of 2003

IN THE MATTER OF:

V

Applicant Father

- and -

V

Respondent Mother

REASONS FOR JUDGMENT

BEFORE:  Justice Rowlands
HEARD:  19 November 2004
JUDGMENT:  24 November 2004

Catchwords

CHILDREN – consent to overseas travel

Legislation considered
Family Law Act 1975 (Cth)

Cases considered

1. J (6) is a fortunate girl.  She has a mother and a father both of whom love her very much.  Her parents do not live together.  They separated in May 2002.  J lives with her mother and sees a lot of her father.  The parents have joint responsibility for her long term care and individual responsibility for her short term care when she is with a particular parent.

1. Parents often have differences in relation to aspects of a child’s life, including in matters relating to schools, medical treatment or the attendance at events.  Generally parents who can cooperate, whether they live together or not, work these things through and a decision is reached by them.

1. On rare occasions, more often when parents live apart, the disagreement reaches a level where a solution cannot be reached and the matter comes to Court.

1. That has happened in this case.  In such matters it is the duty of the Court to make the decision the parents together cannot.

1. The law requires the Court to make a decision which it considers is in the best interests of the child in the circumstances of the case (see Part VII of the Family Law Act 1975).

1. The father wants to take J on a ten day holiday to the United Arab Emirates (UAE) in December.

1. He plans to meet close friends from the United Kingdom in Dubai.  They have a child J has met in Australia.

1. I gather the location has been picked because it is easy of access, being half way between the two countries and probably because it is a glamorous destination with resorts for tourists.

1. However the father requires the mother’s consent for the trip.  The mother is concerned about it and will not consent.

1. The father suggests that the mother is not reasonable and places obstacles in the way of such overseas access visits.  She denies any general opposition to such things.  The mother’s contention is that she is fearful for the child’s safety if J were to travel to and stay at the proposed destination.

1. In this regard the mother points to current Department of Foreign Affairs and Trade General Advice to Travellers published on the World Wide Web by the Department (these are Exhibit F1).

1. The “General Advice to Australian Travellers”, published this month, is there to be read but provides:

   ·     General warnings concerning the threat of terrorism against Western people and the need for care;

   ·     Specific advice to avoid large gatherings or demonstrations and alertness in areas known to be frequented by foreigners etc; and

   ·     Encouragement to monitor country specific advice at smartraveller.gov.au.

1. Reference is then made on behalf of the mother to the country specific advice.  The current (November) “travel Advice United Arab Emirates” includes the following on the front page:

“Safety and Security

Terrorism

Australian travellers should be aware of the threat of terrorism globally and should read this travel advice in conjunction with the General Advice to Australian Travellers.

Australians in the United Arab Emirates (UAE) should exercise a high degree of caution. There are ongoing tensions in the Middle East and the risk of terrorist attacks against Western interests remains. Particular care should be exercised in commercial and public areas known to be frequented by foreigners such as - but not limited to - key transport installations including air and sea ports, premises and buildings associated with foreign government and companies, hotels, clubs, restaurants, schools, places of worship, outdoor recreation events and tourist areas.

On 29 May, terrorists attacked residential compounds in the eastern Saudi Arabian port city of Khobar, taking hostages and killing a number of people. On 7 June, the terrorist organisation Al Qaeda publicly threatened to attack Westerners in the Arabian peninsula, targeting residential compounds, oil interests, military bases and transportation as well as aviation interests. Attacks such as the one in Khobar cannot be ruled out against similar targets in other parts of the Arabian peninsula, including the UAE, despite the 18 June killing of senior Al Qaeda planners in Saudi Arabia.”

1. The advice indicates that it has been reviewed and reissued this month.  The first half of the second paragraph above is highlighted as a headline in the advice before being repeated in the body of the document.

2. The Court, while wholly independent of the executive branch of government, should generally accept a statement of this kind by the specialist federal government department on overseas affairs unless there is real reason to doubt its accuracy or good faith.  The Court cannot itself conduct an independent investigation of the issue.

1. Certainly I can accept that a government department for all sorts of reasons may err on the side of caution in these types of publications.

1. I also accept that a parent may have unrealistic fears for the safety of a young child.

1. Here there is no convincing attack upon the worth of the Department’s advice.

1. While the UAE is not one of those countries the Australian government advises against non-essential travel to, I accept the submission that a high degree of tension remains in the UAE and that the mother has realistic concerns for the safety of her six year old little girl if such trip is undertaken.

1. The probability of J’s safe return if the trip is taken is of course very high indeed but:

(a)despite what is contended to the contrary the mother’s concern appears both real and based on rational grounds;

(b)the absence of parental consensus in the above circumstances is a factor worthy of consideration in itself, particularly as the consequences of harm to the child (short of death) would be likely to seriously undermine the future parenting capacity of the parents individually and in concert with each other; and

(c)the general benefits for the child of the trip, while present, are probably not as high, for instance as a cultural experience, as they may be for a more mature child.  Further the child is at an age where she herself may not be appropriately alert to the need for care.

1. In the circumstances outlined and as the gravity of the unlikely event is high, together with the risk that the mother’s fears have a capacity to affect the child (she being the residential parent), I reject the father’s primary application, which is to take the child to the UAE. 

1. However in accordance with the parties’ agreement I will make the secondary orders (relating to passports) to facilitate other travel for the child with the father (and indeed the mother) in the future.

I certify that this and the preceding 3 pages

is a true copy of the Reasons for Judgment

herein of Justice Rowlands.

Associate