Travelling overseas with your children post-separation can be an topic of dispute between parents. A parent may have a genuine concern about parental abduction, or they may fear for the safety of the children while travelling with the other parent. So what are each parent's rights to travel overseas with their children, and can you prevent your ex-partner from travelling overseas with the children?
Can I Take my Child Overseas without my Ex-Partner's Permission?
Generally, you will need to get formal consent from your child's other parent to travel overseas with them. Importantly, the Family Law Act makes it an offence to travel overseas with your child if there are parenting orders in place for the child, or there are court proceedings underway for parenting orders, unless:
- You obtained express written consent from the other parent; or
- There is a parenting order in force which provides for overseas travel.
If you fail to comply with the above requirements, you can be charged with an offence and imprisoned for up to three years. However, if you don't have any current or pending parenting orders in place, you are not legally required to get consent from the other parent, but it is a good idea to keep them informed to prevent any disputes arising.
Parenting Orders & Overseas Travel
Parenting orders may include orders regarding overseas travel. Such orders may require the travelling party to notify the other parent of the proposed travel and to provide them with details concerning the proposed travel including itineraries, addresses, and contact details for the child while overseas.
It is important to ensure that you understand and comply with the orders.
Refusal to Give Permission
If your ex-parnter refuses to consent to you travelling overseas with your child, you may apply to the Court for an order permitting overseas travel.
Your application should be supported by an affidavit, which sets out: the details and purpose of the proposed travel, the immigration status of the travellers, and the links which the travellers have to Australia.
If you wish to travel overseas with your children, regardless of whether you are legally required to obtain consent, the following recommendations are good practice:
- Plan ahead: discuss any travel plans with the other parent, and leave time to obtain appropriate consent for any travel plans.
- Provide the Other Parent with the Details: you should inform the other parent about the proposed travel, including the destination, the length of the holiday, where you will be staying, and the contract details for the children.
- Be Flexible and Arrange for Make-up Time: ensure that the other parent still gets the chance to spend time with the child and agree upon any arrangments for 'make-up' time if the other parent will miss out on their normal time with the child.
Can I Prevent my Ex-Partner from Travelling Overseas with the Children?
You may withhold your consent in order to prevent your ex-partner from travelling overseas with the children.
If you are concerned that your ex-partner intends to take your child overseas without your consent, or are worried about your child's safety, or consider that there is a risk that the child will be permanently removed from Australia, it is strongly recommended that you seek legal advice.
Your child will not be able to obtain an Australian passport without written consent from each person with parental responsibility. Therefore, if your child does not have a passport, you can prevent them from travelling overseas by refusing to sign the passport application. However, you may not be able to prevent your child from obtaining or travelling with a foreign passport.
A parent with parental responsibility can also lodge a Child Alert Request. This notifies the Department of Foreign Affairs and Trade that you do not consent to your child attaining a passport; but it will not stop your child from leaving the country.
If your child has a valid passport, adding their name to the Family Law Watchlist is the only way to prevent the other parent from travelling overseas with the child. The Family Law Watchlist is managed by the Australian Federal Police (AFP), and it is generally necessary to obtain a court order to get a child added to the list.
Parents wishing to get their child added to the list should apply to the court for a PACE alert and then file a Family Law Watchlist request form with the AFP.
Parents can request the court to make the following orders:
- An absolute prohibition on overseas travel;
- A conditional prohibition on overseas travel, e.g. requiring written consent from both parties for a child to travel; or
- A prohibition against travel to certain countries.
If a parent takes their child overseas without permission from the other parent, it may be considered international child abduction. In these circumstances, it may be possible to force them to return to Australia under the Hague Convention.
The Hague Convention is a multilateral treaty which provides a process to seek the return of their children. However, this will only be possible if your child is in a Hague Convention Country.
If the country is a Hague Convention Country, you must prove the following to facilitate the return of your child:
- The child is under 16;
- You had, and were exercising, parental responsibility for the child when they were removed from Australia;
- The child was a resident in Australia immediately prior to removal; and
- You did not consent to the child being taken, or kept, in the overseas country.
The court may refuse to return the child where the child will be at risk of harm, or where the child, who has attained the relevant age and level of maturity, does not want to return.
What about Interstate Travel?
Parents have more flexibility when travelling interstate, and ordinarily there is no need to obtain the other parent's consent to travel interstate. However, your legal obligations when travelling interstate will depend on the arrangements or parenting orders which are in place.
Parenting orders may require the travelling parent to obtain consent before travelling interstate, or issues may arise if your proposed travel will interfere with the child's time with their other parent. In these circumstances, if you do not attain the other parent's consent, you will be in breach of your parenting orders.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.