Undergoing a separation or a divorce from your partner is an incredibly stressful time in your life. During the process, it can be incredibly difficult to reach an agreement; especially if children are involved. One common area for dispute is when one parent wishes to take a child overseas for a holiday or an extended break and the other parent disagrees or expresses concern about the trip – for example, because they are concerned that the parent might retain the child in that country or alternatively, because they have concerns about the safety or laws in the proposed country.
Thankfully, Orders can be obtained from the Australian Family Court to either permit or prevent overseas travel, as the case may be.
Can I Travel with my Child Following Separation?
International travel is a common issue in family law proceedings. If one parent is not willing to consent to the travel and the parents are therefore unable to reach an agreement – an application to the Court may be necessary.
As a general rule, it is never a good idea to take child/ren overseas without the consent of the other parent. This will be viewed very poorly by the Court (particularly if proceedings are ongoing), and can result in punitive measures including incarceration.
If a parenting order has been made or parenting orders under the Family Law Act are pending, it is an offence to take or send a child to a place outside of Australia without the consent in writing of the other parent or an Order of the Court. This offence is punishable by imprisonment for up to three (3) years.
The appropriate course of action for parents who intend to take their children for overseas holidays is to obtain the written consent of the other parent or make an application to the court to determine the matter if an agreement cannot be reached.
The Court will then consider the various applicable factors such as the background parenting circumstances and relationship between the parents, the length of the proposed trip, the age of the child/ren, the proposed destination and the risk that the child/ren may not be returned.
If a parent is successful in obtaining an order and they are permitted to take the child/ren overseas, the other parent will often ask for and/or the Court will often issue orders requiring that the travelling parent provide the non-travelling parent with a travel itinerary (including proof of return airfare ticketing) and a means of communication with the child/ren while travelling.
Orders are often framed so that parental consent will not be unreasonably withheld for future holidays and that the parties obtain and keep up to date the child/ren’s passports, so as to avoid any future litigation in relation to the matter and to ensure there is an agreed process in place for future travel.
More specific Orders can also be obtained with respect to where a parent is allowed to take a child. For example, restrictions may be placed on parents travelling with children to non-Hague Convention countries or where there is a ‘DFAT warning’ (Department of Foreign Affairs and Trade) in place.
If you are considering an overseas holiday with your child/ren and cannot reach an agreement with your ex-partner, we recommend that you act early and decisively.
Alternatively, if child abduction has or may occur, urgent legal advice and action is vital.
How Do I Return A Child Who Has Been Taken Overseas Without My Consent?
Taking a child out of Australia without the other parent’s consent or refusing to return a child to Australia is wrongful removal or wrongful retention. It is often carried out by the other parent or a member of that parent’s family.
The Hague Convention on the International Aspects of Child Abduction was brought into force in Australia in 1983. Only countries who signed up to the Hague Convention are bound by its rules.
If your child has been taken overseas without your consent, then you should get legal advice immediately.
If your child has been taken to a country that is signatory to the Hague Convention, your lawyer can help you prepare the documentation required to compel the other country to return your child to Australia.
If your child has been taken to a country that isn’t covered by the Hague Convention, then you should also get private legal advice in that country.
Contact Damien Greer Lawyers for Expert Advice
At Damien Greer Lawyers, we have been consulting in the field of international law for over 30 years. In addition, our Principal, Damien Greer, has also been appointed expert witness to the High Court Family Division in the United Kingdom and in the United States with respect to the application of Australian Family Law.
As a result, we can offer you expert advice on the laws relating to children and international travel after divorce.
If you have reason to prevent your spouse taking your children overseas, would like to lodge an application with the court to take a child overseas, or if you need to return a child who has been taken overseas without your permission, please contact us or get started online today.