Vrabcova & Vrabcova
[2024] FedCFamC1F 798
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vrabcova & Vrabcova [2024] FedCFamC1F 798
File number(s): SYC 460 of 2022 Judgment of: HARPER J Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – PARENTING – Where the father resides in the United States of America (“USA”) and the mother and the child reside in Australia – Where time spent by each party with the child during school holidays is agreed – Where the mother seeks to travel to the USA with the child for holiday – Consideration of security for travel – Where the child will be 16 years old at time of travel – Where the Hague Convention on the Civil Aspects of International Child Abduction will no longer apply – Where the father has concerns of mother absconding with the child – Where the mother has travelled with the child to the USA several times without requiring security – Where the mother has strong ties to Australia – Where the mother ultimately intends to relocate to the USA – Where the father seeks injunction to restrain the mother from visiting schools with the child in the USA – Where no risk requiring injunctive relief is established – Orders made permitting international travel without security or restraint imposed. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) Pts VII, VIII, Div 6, ss 60CA, 60CC
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
DeLuca & Farnham [2019] FamCAFC 100
Franklyn & Franklyn [2019] FamCAFC 256
Kuebler and Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 20 November 2024 Place: Sydney Counsel for the Applicant: Mr Richardson SC with Mr Richardson Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Nehmy SC Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 460 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VRABCOVA
Applicant
AND: MS VRABCOVA
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT NOTES:
A.The following definitions apply for the purposes of these Orders:
(a)“mother” means Ms Vrabcova;
(b)“father” means Mr Vrabcova;
(c)“X” means X born 2008.
THE COURT ORDERS THAT:
1.The child X shall spend time with the father from 10.00 am on Saturday 30 November 2024 until the commencement of school on 6 December 2024.
2.For the purposes of X's December 2024/January 2025 school holiday period (which for students at X's school commences from the conclusion of school on 11 December 2024), X shall live with/spend time with each of her parents as follows:
2.1With the mother in Australia from the conclusion of school on 11 December 2024 until 4.00 pm on 15 December 2024;
2.2With the father in Australia from 4.00 pm on 15 December 2024 until 6.00 pm on 2 January 2025;
2.3With the mother in Australia from 6.00 pm on 2 January 2025 until 6.00 pm on 8 January 2025;
2.4With the father from 6.00 pm on 8 January 2025 until after dinner on 18 January 2025;
2.5 With the mother from after dinner on 18 January 2025 until the commencement of Term 1 in 2025 at X's school which is B School, during which time the mother is permitted to travel with X to the United States of America from 19 January 2025 until 3 February 2025 and this Order serves as authority for the mother to temporarily remove X from the Commonwealth of Australia between such dates for the purposes of holiday travel to the United States of America during that period.
3.If X expresses to either or both of her parents a desire to return to the mother's care earlier in time while she is in the father's care during the block holiday time period prescribed by Order 2, or X expresses to either or both of her parents a desire to remain in the father's care for additional time to that which is prescribed by Order 2, each party shall allow, facilitate and enable that to occur.
4.The mother is permitted to uplift and obtain the release of X's international travel documents (comprising X's Australian and US passports, US passport cards, Global Entry Cards and TSA memberships) from C Law Firm to facilitate X's travel to the United States of America pursuant to these Orders, and within seven (7) days of X's return to the Commonwealth of Australia the mother shall comply with Order 12 of the Orders made on 1 November 2022 which require the return of X's international travel documents to the safe custody of C Law Firm.
5.On a without admissions basis, until further order or unless otherwise agreed between the parties in writing, the parties are hereby restrained from changing X’s school from B School save for any steps necessary to secure an offer of a place for X at any school which each of the parties propose that X attend in the future.
6.The document entitled “COMBINED MINUTE OF PROPOSED ORDERS” is marked as Exhibit 3.
7.The mother's Application in a Proceeding filed on 8 November 2024 together with the father’s Response filed on 18 November 2024 be otherwise dismissed.
8.All questions of costs are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Vrabcova & Vrabcova have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are parenting and property proceedings under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant father, Mr Vrabcova (“father”) and the respondent mother, Ms Vrabcova (“mother”).
The parties commenced cohabitation in 1998 and were married in City F, United States of America (“USA”) in 1998. They separated in June 2021 and were divorced in 2022.
There are three children of the marriage:
(a)Ms D, born 2004 and currently 20 years of age (“Ms D”);
(b)Ms E, born 2006 and currently 18 years of age (“Ms E”);
(c)X, born 2008 (“X”);
collectively (“the children”).
Over the course of these proceedings, Ms D and Ms E have reached their majority. X is the only child who remains subject to the jurisdiction of this Court. She reaches the age of 16 years in 2024. Accordingly, it is relevant to note that after that date the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) will no longer apply to X.
BRIEF BACKGROUND
There was no dispute that during the relationship the parties lived in both Australia and the USA. Between 2013 and early 2021 the family lived in City G, State H, USA. In 2021 the family relocated to Suburb J, Queensland. After separation in June 2021, the father returned to live in City G while the mother remained in Suburb J.
The proceedings were commenced by the father on 27 January 2022 in the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).
As part of their final relief, both parents seek parenting orders relating to X, which include both parents residing in the USA, the father in City G and the mother in City F, which is in State K.
The three children live with the mother.
Detailed parenting and property orders were made in Division 2 by Judge Beckhouse on 1 November 2022 allocating equal shared parental responsibility to the parties for Ms E and X, and for them to live with the mother and spend time with the father in Australia and the USA. The father maintains a holiday home in Suburb J. Their names were removed from the Airport Watch List, to enable the mother to travel with Ms E and X to the USA and another country between late 2022 and early 2023, with them to spend time with the father during that period. The mother was required to lodge a security of $5,000,000 in the trust account of the father’s solicitors if she travelled to the other country.
The proceedings were also transferred to this Court on 1 November 2022.
The mother did not travel to the other country with Ms E and X and did not provide the security of $5,000,000. She did however travel to the USA with X and Ms E between late 2022 and early 2023, and returned to Australia with them.
In April 2023 X spent time with the father in the USA for Easter.
On 15 May 2023 consent orders were made for the mother to travel with the children to Europe, the United Kingdom and the USA in mid-2023. No security was ordered or provided and the mother returned to Australia with the three children. By the dates of this trip Ms D had turned 18 and was no longer subject to this Court’s jurisdiction. Ms E had turned 17 and during the trip was no longer subject to the Hague Convention but remained subject to this Court’s jurisdiction, while X remained subject to both.
Ms D and Ms E both attend a university in Queensland. There was no evidence that they intend to relocate to the USA before X reaches 18 in 2026.
APPLICATIONS
The mother filed an Application in a Proceeding on 8 November 2024 seeking orders permitting her to travel to the USA with X between December 2024 and January 2025.
The father filed his Response on 18 November 2024. The application and response were listed for hearing on 20 November 2024.
At the hearing, senior counsel for the father provided a document (marked “Exhibit 3”) which embodied the orders sought by the parties and isolated by colour the areas which remained in dispute. Rather than setting out the contending proposal in full this document can be reproduced in this judgment with commentary indicating what was agreed and where dispute remained, as follows:
1. That the child [X] shall spend time with the Father from 10:00am on Saturday 30 November 2024 until the commencement of school on 6 December 2024.
2.That for the purposes of [X's] December 2024/ January 2025 school holiday period (which for students at [X's] school commences from the conclusion of school on 11 December 2024), [X] shall live with/ spend time with each of her parents as follows:
2.1 with the Mother in Australia from the conclusion of school on 11 December 2024 until 4:00pm on 15 December 2024 […];
With the Mother in Australia from 12 to 4:00pm on 15 December 2024, during which time [X] may spend time with the Father in accordance with her wishes2.2 with the Father in Australia from 4:00pm on 15 December 2024 until 6:00pm on 2 January 2025;
2.3 with the Mother in Australia from 6:00pm on 2 January 2025 until 6:00pm on 8 January 2025;
2.4 with the Father from 6:00pm on 8 January 2025 until after dinner on 18 January 2025;
2.5 with the Mother from after dinner on 18 January 2025 until the commencement of Term 1 in 2025 at [X's] school which is [B School], during which time the Mother is permitted to travel with [X] to the United States of America from 19 January 2025 until 3 February 2025 subject to the Mother complying with proposed Orders 5 and 6 below, and this Order serves as authority for the Mother to temporarily remove [X] from the Commonwealth of Australia between such dates for the purposes of holiday travel to the United States of America during that period.
3.If [X] expresses to either or both of her parents a desire to return to the Mother's care earlier in time while she is in the Father's care during the block holiday time period prescribed by Order 2, or [X] expresses to either or both of her parents a desire to remain in the Father's care for additional time to that which is prescribed by Order 2, each party shall allow, facilitate and enable that to occur.
4.[deleted]
5. Not later than 13 December 2024, the Mother must provide security for the return of [X] from the United States of America following the conclusion of holiday travel permitted by Order 2, by:
5.1 depositing into the trust account of the Father's solicitors, Barkus Doolan Winning, the sum of AUD $5,000,000 (hereinafter referred to as "Security for Travel"); and
5.2 providing to Barkus Doolan Winning a signed Irrevocable Authority in the form found at ANNEXURE 1 hereto;
which such Security for Travel to be held by Barkus Doolan Winning on trust for the Father pending the return of [X] to the Commonwealth of Australia on or before 3 February 2025 pursuant to Order 2.
6. If the Mother fails to return, or fails to co-operate to cause for the return of, [X] to the Commonwealth of Australia by no later than 4pm on 14 February 2025, the Mother shall forthwith thereafter forfeit the Security for Travel and this Order will serve as authority by the Mother, as may be required by Barkus Doolan Winning, to give effect to the immediate release of the Security for Travel to the Father beneficially.
7. If the Mother returns [X] to the Commonwealth of Australian subsequent to the overseas holiday travel permitted by Order 2.5 (and in any event by no later than 4pm on 14 February 2025), the Father must forthwith do all acts and things and provide all necessary instructions to his solicitors, Barkus Doolan Winning, to cause the return to the Mother of the Security for Travel.
8. Pending further Order, and unless otherwise agreed between the parties in writing, the Mother is restrained from taking [X] to, facilitating [X's] attendance at, and/or in any way causing or permitting or facilitating [X's] attendance and/or participation at any school, college or other educational institution in the United States of America, and the Mother shall not cause or permit any other third party to do so on her behalf.
9. Pending further Order, and unless otherwise agreed between the parties in writing, the Mother is restrained from arranging, facilitating, causing and/or permitting [X] to participate in any in-person, online and/or telephone interview and/or tour of any school, college or other educational (including boarding) institution in the United States of America.
10.On a without admissions basis, until further Order or unless otherwise agreed between the parties in writing, the parties are hereby restrained from changing [X’s] school from the [B School] save for any necessary steps to secure on offer of a place for [X] at any school which each of the parties propose that [X] attend in the future.
11. The Mother is permitted to uplift and obtain the release of [X's] international travel documents (comprising [X's] Australian and US passports, US passport cards, Global Entry Cards and TSA memberships) from [C Law Firm] to facilitate [X's] travel to the United States of America pursuant to these Orders, and within seven (7) days of [X's] return to the Commonwealth of Australia the Mother shall comply with Order 12 of the Orders made on 1 November 2022 which requires the return of [X's] international travel documents to the safe custody of [C Law Firm].
12. That the Mother's Application in a Proceeding filed on 11 November 2024 otherwise be withdrawn and dismissed.
13. That the Mother shall pay the Father's costs of and incidental to these interlocutory proceedings.
14. That the Father pay the Mother's costs of and incidental to these proceedings.
ANNEXURE 1:
IRREVOCABLE AUTHORITY
1. I, [MS VRABCOVA], hereby irrevocably authorise and direct BARKUS DOOLAN WINNING, that in the event that I fail to return or cause the return of the child [X] to the Commonwealth of Australia by no later than 4pm on 14 February 2025 (noting that I intend to return [X] to the Commonwealth of Australia by 3 February 2025 following proposed holiday travel to the United States of America) , to release the Security for Travel paid by me in the amount of AUD $5,000,000 to [MR VRABCOVA] to an account nominated by him in writing.
2. I acknowledge that this authority cannot be revoked by me and can only be revoked by Order of the Federal Circuit and Family Court of Australia (Division 1).
(Colours represented by italics and underline)
The struck-out wording in paragraph 2.1 was removed by agreement. The wording of paragraph 3 was agreed. Paragraph 4 was deleted because the mother provided copies of the relevant airline tickets to the father. The wording of paragraph 10 was agreed, or at least said to be of little moment by the father. Paragraph 11 was agreed. The central area of debate arose from the proposed orders in paragraphs 5 to 9 and the Annexure.
It can be seen that there is agreement that the mother should be permitted to travel to the USA with X between 19 January 2025 and 3 February 2025, if she provides security of $5,000,000.
Therefore the issues left for determination arise from paragraphs 5 to 9 of the proposed orders of the father and can be summarised as follows:
(a)Whether the mother should be required to pay Security for Travel in the sum of $5,000,000; and
(b)Whether the mother should be restrained from facilitating X to visit, tour, interview or participate in any school in the USA.
The mother relied upon the following material as set out in her Case Outline filed 19 November 2024:
(a)Amended Response to Initiating Application filed 2 May 2023;
(b)Application in a Proceeding filed 8 November 2024; and
(c)Affidavit of Ms Vrabcova filed 8 November 2024.
The father relied upon the following documents as set out in his Case Outline filed 19 November 2024:
(a)Response to an Application in a Proceeding filed 18 November 2024;
(b)Affidavit of Mr Vrabcova filed 18 November 2024;
(c)Affidavit of Mr L filed 6 October 2022;
(d)Affidavit of Mr M filed 7 October 2022; and
(e)Further Amended Initiating Application filed 17 April 2023.
Both parties relied upon the affidavit filed 11 November 2024 and annexed Family Report dated 13 July 2023 by Single Expert Ms N. At the time of the interim hearing, this report was almost 18 months old. I note that there are appointments for the Single Expert to conduct interviews in February and March 2025 for the purpose of an updating report.
INTERNATIONAL TRAVEL
Orders concerning international travel for a child subject to the jurisdiction of the Court are parenting orders. In determining the appropriate orders to be made, the best interests of the child are the paramount consideration (s 60CA of the Act). The best interests of the child are to be determined by reference to the considerations as set out in s 60CC of the Act, which must be considered but not necessarily discussed (SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637 at [48]–[49]; Tibb v Sheean (2018) 58 Fam LR 351 at [74]–[88]). I have given careful consideration to each of the primary and additional considerations as they may relate to the narrow question of overseas travel and the evidence and arguments relevant to this question.
Long standing Full Court authority has also set out other practical considerations which inform an exercise of discretion to permit international travel. In Kuebler and Kuebler (1978) FLC 90‑434 at 77,205–77,206 the Full Court identified:
(a)The length of the proposed stay out of the jurisdiction;
(b)The bona fides of the application;
(c)The effects on the child of any deprivation of time spent with the non-travelling parent;
(d)Any threats to the welfare of the child; and
(e)The degree of satisfaction which the Court has that a promise made by a party to return to Australia will in fact be honoured.
In Line v Line (1997) FLC 92-729 (“Line”) (which continues to be followed e.g. DeLuca & Farnham [2019] FamCAFC 100 (“DeLuca”) at [35]) the Full Court considered that in relation to an application for the children to be taken to the USA for a holiday, given the mother was born in the USA, there was a risk that she may not return the children to the jurisdiction, however, it was a risk that could be lessened by fixing an appropriate level of security for the children’s return.
In fixing an appropriate level of security the Court may take into account the following as outlined by the Full Court in Line (supra) at 83,846–83,847:
(a)That the sum must be sufficient to “realistically entice the person removing the children to return” and to enable the party remaining in Australia to take whatever action as may be necessary to have the children returned;
(b)The extent to which the risk of the mother not returning the children can be ascertained;
(c)The financial circumstances of the parties; and
(d)Whether the country of travel is a signatory to the Hague Convention.
In DeLuca at [39] the Full Court observed:
In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a) Which would realistically entice the person removing the children to return; and
b) 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.
In Franklyn & Franklyn [2019] FamCAFC 256 at [28] the Full Court also pointed out:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
It is undisputed that there would be no risk to the safety of X in travelling to the USA, or in the care of either parent. She is nearly 16 and it was also undisputed that she would benefit from travel to the USA where she has extended family. As pointed out, she has lived in the USA and visited from Australia a number of times before and there is no evidence to suggest she would not be keen to do so again. The travel would have no negative impact on her relationships with both parents, which are strong.
I am satisfied the mother’s proposed travel is bona fide. She has explained where and why she proposes to travel in the USA and has purchased return tickets.
These proceedings are likely to be heard on a final basis no earlier than late 2025. Bearing in mind her present age and the fact X will likely be 17, or nearly 17, by the time the parenting proceedings are determined on a final basis, experience suggests, and the evidence shows, that a likely outcome will be parenting orders to the limited effect that X should spend time with each parent in accordance with her wishes. In my view, nothing in the evidence suggested this could be the subject of serious contention. However, both parties resisted conceding this, beyond accepting that, at 17, X’s wishes and views would be a very significant consideration, although each maintained that the other could influence X in her views.
The father argued there is a material risk that the mother would not return with X in February 2025. He argued that the evidence disclosed a plan for “self-help justice” by the mother to relocate to the USA, prior to the determination of these proceedings, in which both parties had participated for several years. The effect would be to pre-determine in a practical sense the outcome of these proceedings, because the central question remains with which parent X will live. His senior counsel described the date of X’s birthday as a “bright line”. Once the Hague Convention ceases to apply to X, the father argued that he would be unable to utilise the summary procedure created by that convention to force the mother to return X to Australia.
The father relied upon evidence that the mother referred to plans to relocate to the USA in 2022, and in correspondence in March 2024 she again raised “possible” relocation to the USA “in the future” but committed to remaining in Australia until X finishes Year 10, which is at the end of 2024. He also relied upon evidence of statements made by X in 2022 suggesting she would prefer to live in the USA.
He also pointed to the fact that the mother, quite openly, has arranged for X to visit schools in the USA during January 2025, including the option of spending one night at a boarding school. He argues that by taking X to visit schools in the USA, the mother is trying to influence X and I should infer this is part of her plan to relocate with X to the USA in spite of the proceedings in this Court.
He argued that the mother had the financial capacity to pay the security of $5,000,000 and her resistance to paying it amplified his concerns about the mother’s intentions.
The father’s arguments are not convincing.
It is true that the mother has family and friends in the USA. Indeed both parents have a strong connection to the USA, and both propose to live there in the future.
But the mother continues to have strong ties with, and reasons to return to, Australia. She is a permanent resident of Australia. She lives in a property at Suburb F. It is owned through a trust and may be sold, but that is true of any property. The older two children attend university and there was no evidence they wish to relocate to the USA. The mother is unlikely to relocate to the USA when her older children remain in Australia, at least while these proceedings remain unresolved. The very fact that she has been involved in these proceedings for over two years, there is a substantial property pool, any property adjustment orders will have a substantial material impact on her future, and the prospect of a final hearing is on the horizon, are reasons why the mother would not retain X in the USA and will return to participate in a final hearing.
The length of the proposed stay in the USA from January to February 2025 is only 15 days. It is quite clear that the mother has travelled with X to the USA without any security several times in the recent past, even if this has been in the company of one or both of her other children. The mother’s past conduct in relation to travel to the USA is more consistent with an absence of a risk of not returning to Australia.
The father also pointed to the fact that the November 2022 orders imposed security of $5,000,000. But the security ordered in November 2022 was connected to travel to another country, which did not take place, not the USA. In his evidence, the father claimed that it was only the imposition of the $5,000,000 security which dissuaded the mother from travelling to the other country and “possibly dissuaded [her] from failing to return [Ms E] and [X] to Australia”. It may well be true that the mother was dissuaded from travelling to the other country by the imposition of security, but it was not explained how an absence of security could have dissuaded the mother from remaining in the USA with X. In addition, the travel the subject of this judgment does not include that other country.
While I accept the mother has the capacity to pay the security proposed by the father, I do not accept that the evidence establishes a risk requiring any security for the mother’s proposed travel to the USA with X. $5,000,000 is a substantial amount and I consider the mother’s resistance to be reasonable, and not indicative of sinister intent, in circumstances where no compelling basis to pay any security has been made out.
It was implicit in the father’s argument that it was only the continuing application of the Hague Convention which dissuaded the mother from retaining X in the USA in the past. But as mentioned already, the mother travelled to the UK and the USA in mid-2023 with Ms E when the Hague Convention had ceased to apply to her. I do not accept the fact the Hague Convention will cease to apply to X after her birthday is a compelling reason to impose security for the mother’s proposed travel in the circumstances of this case.
Turning to the injunctive relief sought by the father, he relies upon the same arguments and I find them equally unpersuasive in this regard. Moreover, it is part of the mother’s proposed orders that both parties be restrained until further order or agreement from changing X’s current school, being B School. The mother argued that in light of the upcoming interviews with the Single Expert and the proposal of both parties to relocate to the USA it is not only desirable but necessary for the expert to hear X’s views about schooling in the USA. For this reason it is entirely appropriate to undertake the proposed school visits. I agree. It is of course open to the father to take X to visit schools which he considers to be in her best interests for the same purpose.
The father characterised his claim to security and injunctive relief as a protection for the integrity of this Court’s processes, similar to the basis of a Mareva injunction, against the asserted risk that the mother’s conduct would subvert them. His problem is that the argument faces the reality that, if he is right, the mother intends to flee to the very nation where he currently lives and where both parents intend to live after these proceedings are concluded. The only difference is that they will live in areas which are some distance from each other and he wants X to live with him and to attend a school in or near City G.
Having found there is no risk as claimed by the father, I am also unable to find that there is a risk to the proper processes of this Court requiring injunctive relief to protect them.
It is implicit in the argument of the father that the loss of protection from the Hague Convention would leave the father without remedy. That is not self-evident. While there was no evidence of the content or likely operation of any family laws in any particular state of the USA, I am prepared to assume, on the basis of common knowledge (s 144 of the Evidence Act 1995 (Cth)), that the USA has a functioning court system in which the rule of law is upheld in a legal system derived from the same common law tradition as the system of laws in Australia. If the mother chose to retain X in the USA in breach of the existing orders of this Court, the father can apply for a recovery order in this Court, bearing in mind the mother will still be required to attend at a final hearing in Australia where both parenting and property issues will require determination. He may commence parenting proceedings in the USA, where, as already mentioned, both parents propose to live anyway. I accept this may involve more costs and expense than the summary procedure under the Hague Convention. But beyond the loss of the protection of the Hague Convention, the father did not present any arguable reason why he may not have remedies in the USA if the mother absconded there with X and failed to face this Court in a final hearing.
I conclude the mother should be able to travel to the USA as she proposes with X on the dates she proposes and I will make the orders to this effect consistent with Exhibit 3. I will not impose any security as sought by the father or restrain the mother from visiting any schools with X. Although it was viewed as unimportant by the father, I will include an order as proposed by the mother restraining the parties from changing X’s current school.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 25 November 2024
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