FROST & FROST

[2015] FamCA 810

FAMILY COURT OF AUSTRALIA

FROST & FROST [2015] FamCA 810

FAMILY LAW – INTERIM PROCEEDINGS – Overseas travel – Where the mothers seeks to be able to travel from time to time to Japan and other countries that are signatory to the Hague Convention – Where the father is presently incarcerated – Where the father does not oppose the mother’s application subject to her paying security – Consideration of appropriate amount of security – Risk of non-return of the children – Where the mother and children have significant ties to Japan – Where the mother and children are well established in Sydney and the mother expresses no intention to relocate – Mother to pay $10,000 security

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Ms Frost

RESPONDENT: Mr Frost

INDEPENDENT CHILDREN’S LAWYER: Mr Williamson

FILE NUMBER: SYC 4759 of 2013

DATE DELIVERED: 30 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bailey Mullard Lawyers

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Todd Ritchie Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

Orders

1. The children, B, born … 2004 and C, born … 2008, be permitted to travel with the mother to Japan and/or other countries which are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction for a period of not more than 10 weeks in any 12 month calendar period.

2. The children’s passports are to be held by the Registrar of this Court to be released to the mother from time to time on the mother satisfying the Registrar that the conditions of these orders (and in particular notice to the father and the lodgement of security) have been satisfied.

3. The mother shall give to the father at least 21 days’ notice in writing of her intention to travel overseas together with a detailed itinerary confirming dates of travel and places of accommodation.

4. Twenty-one days prior to any travel, the mother shall lodge $10,000 in her solicitor’s trust account and if she is not represented at the time, a solicitor’s trust account nominated by the father.

5. In the event the mother remains out of Australia with the children for more than 14 days, after the date she is due to return to Australia, the father is at liberty to apply to the court for the release of the sum of $10,000 for the purposes of the father taking all necessary steps to bring about the return of the children to Australia.

6. The mother shall have the sole responsibility for making any application to the Australian Passport Office, Department of Foreign Affairs and Trade in relation to issue of passports for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frost & Frost has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4759  of 2013

Ms Frost

Applicant

And

Mr Frost

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Frost (“the mother”) wishes to travel to Japan with the two children (aged 11 and 7) for a holiday. She seeks orders that the children be permitted to travel to Japan and any other countries which are signatories to the Hague Convention for a period not more than 10 weeks in any 12 month calendar period.  The father asserts the mother is a flight risk but does not oppose the application save that the mother pay security of $30,000 and that the Independent Children’s Lawyer hold the children’s passport upon their return.

2. This matter proceeded before on the basis that both children are habitually resident in Australia and that the mother, whilst wanting to travel to Japan, had no intention of making Japan or any other country the habitual residence of the children.

3. Mr Frost (“the father”) is currently incarcerated criminal offences. He has been sentenced to 2026 but will likely be released in 2019. The father is not seeking any contact with the children at the current time.

4. The mother was born in Japan. She moved to Australia in 2001 and commenced cohabitation with the father. The parties married in Australia in 2001.

5. The parties’ first child was born in 2004 in Australia. He is now aged 11 years old. The parties’ second child was born in 2008 in Australia. He is now aged 7 years old.

6. The father asserts that his family has sought to spend time with the children but the mother has not responded to those requests. No member of the father’s family has seen the children since the father was first incarcerated in 2013. No member of the father’s family sought to be a party to these proceedings.

7. The Full Court in Line & Line(1997) FLC 92-729 set out the factors to consider when considering the risk of non-return by a parent:

   1.(a)     The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

   (c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (d) Whether the country of travel is a signatory to the Hague convention.

8. The mother was born in Japan and is a Japanese citizen. She is also a permanent resident of Australia. The mother and children have a strong connection with Japan.

9. The mother deposes to the family having travelled to Japan on six occasions since 2004. She asserts that it was the parties’ intention to relocate and live in Japan from 2014 but that she does not now expect to live in Japan at all. As mentioned above, she says she has no intention of removing the children from Australia permanently.

10. Japan is a signatory to and has adopted the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

11. The mother is a founder, teacher and active committee member of the Region D Japanese Language School.  She teaches at the school every Saturday morning. The mother is also studying to obtain a Certificate in Language Teaching through the University E which she will complete this month.

12. The mother is also employed on a permanent part time basis at the University F. She has been employed by the university since 2001.

13. The mother has a close network within the Region D community including work, friendships and counselling supports. The mother has resided in Region D since 2001.

14. The children attend G School. The eldest child is in year 5 and the youngest is in year 1. The mother says that the eldest child has expressed a wish to audition to attend the H School. He is a talented performer.

15. The former matrimonial home was sold in November 2013 and since that time the mother and children have resided in a rental property at Suburb I. As part of the final property settlement, the mother received the sum of approximately $94,602.

16. By way of current interim orders, the Independent Children’s Lawyer holds the children’s passports and will not release the passports to either parent unless there is written consent by both parents or pursuant to an order of this court.

17. Consent orders were made on 28 July 2014 enabling the mother and children to travel to Japan for six weeks. The mother had difficulty travelling because one of the children’s passports had expired. The mother and children ultimately travelled to Japan on 10 August 2014. The mother’s father had recently passed away and she was able to spend time with her family. She says the children thoroughly enjoyed the experience and they did not want to come home. The mother says the eldest child formed a bond with her nephew. The mother and children returned to Australia on 30 September 2014.

18. The mother seeks to be able to travel to Japan from time to time. Her family reside in Japan. It is the mother’s proposal that she will stay mostly with the maternal grandmother in her home in Japan, and will also stay with her two sisters. The mother asserts it is extremely difficult for her family to travel to Australia because of health concerns and work commitments.

19. It is the mother’s wish that she and the children maintain a connection to the mother’s family and culture in Japan. The mother fears that without travel to Japan on a regular basis, that connection with deteriorate. The mother asserts that both children have also expressed strong wishes to visit Japan.

20. In Line & Line the Full Court followed the following approach when considering the appropriate amount of security:

    (a)to provide a sum which will realistically entice the person removing the children to return; and

    (b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

21. The mother offers to lodge $10,000 as a guarantee for her return. She however seeks that the children’s passports be held by her. The mother has only $94,000 to her name. She relies on these funds as security to support herself and the children.

22. It is the father’s case that in the event the mother did not return to Australia it would be necessary for the father to instruct solicitors to act for him and liaise with relevant government authorities in Japan. Counsel for the father submitted that any proceedings in Japan would be complicated because of language difficulties and so $10,000 would not be adequate to guarantee the mother’s return. I do not agree with that proposition.

CONCLUSION

1. I was not taken to the relevant domestic Japanese legislation but I assume, consistent with the Convention, the father would have a right to bring an application under the Convention in his own right. That however is not the normal process.

2. Usually the father’s solicitors would liaise with the Central Authority here in Australia which would then make a request to the relevant Japanese Authority. The father would not be responsible for those costs.

3. Given the extent of the mother’s property, I find that $10,000 is a significant sum to her and realistically would not be an amount of money she would wish to lose.

4. I find that the lodgement of $10,000 is sufficient in the circumstances of this case.

5. There was no logical reason why there would be any difference between Japan and any other Hague Convention country. I find that the wider order sought by the mother to travel to other countries that are signatories to the Hague Convention, and the ancillary orders sought by her (except for passports), are all appropriate orders and I will make them. In relation to the children’s passports, however, in order to ensure that the mother complies with the conditions of notification and the lodgement of security for overseas travel, the passports should be held by the court to be released to the mother from time to time upon the mother demonstrating from time to time that she has otherwise complied with the conditions placed on her overseas travel with the children.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 September 2015.

Associate: 

Date:  30.9.2015