In the post-separation and divorce world, there are many things that as a parent you will never have had to consider or indeed experienced. One of the most common questions and concerns is whether one parent needs permission from the other parent to take their children abroad on holiday.
First and foremost, before looking at any of the legal implications of travelling with your children once divorced, we would urge both parties to really try and be kind to one another. At no point would we suggest that one parent should take their child abroad without as a bare minimum consulting with the other parent and keeping them informed as to the where, when and how – regardless of their legal entitlement. This is a simple human courtesy that both parents deserve from one another.
Getting the Right Documents
First things first. To travel with your children, you will naturally need a passport and this may be the first stumbling block if consent is not given. To get a new passport or renew a passport, both parties that have parental responsibility will have to give consent for that application. As this is the start point to any considerations, this will give you a clear indicator as to whether you may encounter further roadblocks down the road. If one parent holds the existing passport and documentation, this will obviously be one of the first indicators as to the potential to travel – will one parent share or withhold the documents?
In extreme circumstances, in the event that one parent refuses to give consent for either the release of an existing passport or an application for a new passport, legal action may be needed by approaching the Federal Circuit and Family Court of Australia seeking permission to have the passport issued or released without that parent’s consent.
Travelling Abroad – Consent
Rather than look at control, we will use the word consent as this is the most important factor. In line with the Family Law Act 1975, the top line of the law states that you need to obtain permission from your child’s other parent for overseas travel. Where consent is given, all other matters such as maintenance, parental arrangements and custody will not be part of this consent and, allowing your former partner to travel with the children, will not impact on these already decided elements.
Concerns for Return
A very natural concern is that one parent absconds with the children once abroad. This is a very real concern for couples that have strained relationships and have gone through potential custody issues. Consulting with your legal team that worked with you on your divorce is naturally advisable.