TANNER & SHIMIZU

[2010] FamCA 850

FAMILY COURT OF AUSTRALIA

TANNER & SHIMIZU [2010] FamCA 850

FAMILY LAW – CHILDREN – parenting – best interests of child – relocation – passport

Family Law Act1975 (Cth)

APPLICANT: Ms Tanner

RESPONDENT: Mr Shimizu

FILE NUMBER: SYF 2746 of 2006

DATE DELIVERED: 24 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ainslie-Wallace

HEARING DATE: 14 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Representing self

COUNSEL FOR THE RESPONDENT: Mr J Levy

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. The mother, Ms Tanner, be permitted to have possession of the passport of the child of the marriage, B, other than at such times as the child is travelling with either party or for such other reason as may be agreed between the parties from time to time.

2. The mother be permitted to take the child out of Australia for the purposes of overseas travel provided that no later than 28 days before the intended date of travel she provide to the father or as he directs, a detailed itinerary of the proposed travel including dates of departure and arrival at the various destinations and copies of documents sufficient to demonstrate that the child has a paid return ticket to the proposed destination.

IT IS NOTED that publication of this judgment under the pseudonym Tanner and Shimizu is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF2746  of 2006

MS TANNER

Applicant

And

MR SHIMIZU

Respondent

REASONS FOR JUDGMENT

Background

1. This application involves a passport for a child, B, who was born in December 1998 (the child).

2. The parties Mr Shimizu (the father) and Ms Tanner (the mother) were married in March 1998 and separated in August 2004.  The father left Australia to work in Japan in 2004.  He has continued to live and work in Japan but returns to Australia during each year to see the child.

3. In September 2009 the parties resolved outstanding disputes in relation to parenting issues and orders were made by consent.  Those orders gave the parties equal shared parental responsibility for the child and provided that the child would spend time with the father both in Australia and overseas.  Relevantly, the orders provided:

   “5. ….the mother is to ensure that the child is in possession of her current passport and the passport is current for the entirety of the child’s travel overseas and all other documentation needed for any overseas travel.

   6. The father and mother are to do all acts and things and sign all documents to ensure the child has a current passport at all times.”

4. Order 10 provided that should the father wish to remove the child from the Commonwealth of Australia then he must lodge a $50,000 bond against a failure to return the child.

5. It seems that from time to time the father has taken the child out of Australia in accordance with the orders and has lodged the necessary bond.

6. At all material times from separation until the end of 2009 the child’s passport was current and was held by the mother. 

7. In late August 2009 the mother’s solicitor wrote to the husband to the effect that the child’s passport was about to expire and requested him to sign forms to have it to renewed.  The mother sent the necessary forms to the father and requested him to pay the application fee.  By letter from his solicitor dated November 2009, it was indicated that the father was not obliged by the orders to pay the cost of the application.  As a result, the mother deferred the renewal of the passport.  It seems however that the father did complete the necessary forms however there were defects in the form and it was not accepted by the passport office.  In April 2010 the mother gave the child a new application form and asked her to have her father fill it in when he was next in Australia.  According to the mother’s affidavit, the child sent an email to her father asking him to complete the form because “Mummy wants to take me on holiday and needs a passport.”

8. By letter of 23^rd April 2010, the father, through his solicitors advised that he did not consent to the mother taking the child out of Australia unless she provided an itinerary for the travel and deposited a bond of $50,000 in the solicitor’s trust account as security for return of the child.  By further letter of 5^th May, the solicitors informed the mother that the father had concerns that she would remove the child from Australia and therefore required a security bond.  The letter imposed a further condition that the child’s passport be held by the father’s solicitor and would be released when the mother had provided the itinerary and the bond.  Finally in a letter of 7^th June 2010, the father, through his solicitor included a further condition precedent to the mother’s travel with the child which was that she provide information about how any proposed trip was to be funded and if the funding was through a third party, the identity of the third party.

9. In subsequent correspondence, the father indicated that he was only concerned should the mother be proposing to take the child to a country to which the Hague Convention on Children Abducted Abroad did not apply, in which case he would require her to lodge a bond against her failure to return the child.

10. In his affidavit filed in this matter the father indicated that he was concerned that the mother would, if she had possession of the child’s passport, take the child out of Australia without his knowledge or consent; that she did not have the capacity to fund any travel or to provide for the child while away and that some time ago, the mother had a relationship with a man who now lives in China.  It was not suggested that she is presently in a relationship with that person (or indeed if she ever was) or whether she remains in contact with him or would wish to visit him in China.

Applications

1. The mother applied for the following orders:

   “1. …that any passport from now until the child of the marriage, [B] turns 18 years of age be issued without the consent of the father

   2. …that the passport of the child of the marriage…be kept by the mother at the family home where the child resides.

   3. …that the mother be at liberty to travel overseas with the child of the marriage.”

2. The father responded seeking orders that the mother deliver the child’s passport to his solicitor and it not be released without the consent of both parties; that the parents be restrained from taking the child out of the country and seeking orders that the child’s name be placed on the Watch List; in the even that either party wish to take the child out of Australia to a non Hague Convention country that party must lodge a $20,000 security; the parent wishing to take the child out of Australia provide a detailed itinerary of the travel before the commencement of the travel.

Discussion

Possession of and applications for passports

1. Although the basis for the orders sought by the mother appears to be that the father has been obstructive and difficult over the renewal of the passport, it seems that he has in the past signed the necessary documents to have the passport renewed.  There is insufficient basis demonstrated for an order that the mother be able to obtain a passport for the child in the future without reference to the father.  The ability of the father to be consulted and his consent sought to the issue of a renewed passport is part of equal shared parental responsibility and I would not other than in clearly demonstrated circumstances curtail those responsibilities on an interim basis.

2. It is to be observed that the mother started the process of renewing the child’s passport well before the consent orders of September 2009 were made.  It must have been understood at least by the father and those acting for him at the time that the mother had possession of the child’s passport and that it was current.  Further, the orders contemplate that the mother will take all steps necessary to keep the passport current.

3. The mother has held the child’s passport for years and continues to do so.  Subject to the other orders I propose to make, there is no reason for her not to continue to do so.  I do not regard the father’s arguments against that course as being reasonable or persuasive.   

   Mother’s overseas travel with the child

4. On the evidence before me I am not satisfied that there is any reason why the mother should not be free to take the child on an overseas holiday should she wish.  It seems appropriate in this case that the father should be informed of the proposed destination and be provided with a detailed itinerary before any proposed travel.  The mother, in her submissions, offered that she would provide proof of paid return tickets on any proposed travel.  It is not clear that the father was pressing his requirement that the mother inform him of the way in which any proposed holiday is funded, but in any event, in my view it is a requirement that is neither supported in the evidence nor is it reasonable in all of the circumstances.

5. It is also to be observed that the orders made in September 2009 provide for the father to lodge a bond against his failure to return the child from any overseas travel.  No similar order was made in relation to the wife.  Japan, where the father lives, is not a signatory to the Hague Convention.

6. It was argued for the father that there had not been any suggestion in the past that the mother proposed to take the child overseas and, on becoming aware that she was planning a trip, became concerned that she might take her out of Australia without his consent. 

7. It was submitted that the way in which the proposed trip was broached, that is through the child, was a matter that heightened the father’s concerns. It was argued that the appropriate way for the subject to have been broached would have been by the mother contacting the father’s solicitors.  Minds may well differ as to what was appropriate in the circumstances, however in my view that the child raised it with her father does not of itself support the argument that there was something inherently unusual or alarming in it.  

8. It was further argued that some years ago the mother had an association with a man who lived in China and it was said that she might take the child to China.  Finally it was argued that the mother had no funds with which to take a trip.

9. In my view, none of the arguments is persuasive of the orders sought by the father that require the mother to lodge the passport with his solicitors, that either parent be restrained from taking the child out of Australia nor placing her on the Watch List. 

   Bond

10. The mother had possession of the passport for years before the consent orders were made in September 2009.  One would expect that if the father held any concerns that she might use her possession of the passport to take the child out of Australia without his consent, the concerns would have been addressed in the consent orders.  That a party might fail to return a child taken to a non-signatory country was within the parties’ contemplation at the time because the orders provide for such a bond to be lodged against that eventuality.   

11. The wife argued that the reason the orders provided for a bond was to allow her to pursue the return of the child should the father not return her and she lacked the necessary funds. 

1. However, I am not persuaded on the evidence before me that it is reasonable or appropriate to make an order that the mother lodge a bond if she wishes to travel with the child.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 24 September 2010.

Associate: 

Date:  24 September 2010