As a separated or divorced parent, you might be concerned about your children traveling overseas. In particular, you may be worried about the other parent taking your child out of the country without permission. But parents are often also concerned about travel to dangerous countries, travel that interferes with schooling and other important dates, and travel to countries where it can be difficult to have the children returned to Australia.
Here in Australia there are several factors that come into play when taking a child out of the country, including:
- Access to passports
- Restrictions during court proceedings
- Court orders
- Parental consent
Access to Passports
The first question to ask is whether the children have passports. Without a passport the children will be unable to leave the country. In Australia a parent should not be able to apply for a passport for a child without the consent of both parents.
If your kids do have passports, and you have possession and control of the passports, then the other parent will be unable to use those passports to take the children abroad.
However, some countries do allow one parent to apply for a passport for children. If the other parent of your children is a citizen of another country where passport rules are different, they may be able to acquire passports for the kids that way.
We recommend you seek legal advice immediately if either:
- Your children have passports that you do not have possession and control of
- The other parent can acquire passports from another country
Travel Restrictions During Court Proceedings
If you have a matter before the Court, parents are restricted from taking their children out of Australia. If a parent has taken a child out of the country without permission of the Court and the other parties, they risk being charged with an offense under the Family Law Act and severe penalties can apply.
However, there are no specific measures in place to stop a parent from traveling out of Australia with a child, but there can be if certain steps are taken. If they have a current, valid passport, it will continue to get them through customs and border control. Because of this, in some family law matters there may be a higher level of risk of a child being unlawfully removed from the country.
We recommend you seek legal advice immediately if either:
- You suspect that the other parent has made plans, or has travelled outside of Australia with your child without the permission of the Court
- The other parent is from a country that is not a signatory to the Hague Convention, which is an alliance of countries that cooperate in returning children who have been internationally abducted by a parent
Court Orders
The Courts with Family Law Act jurisdiction in Australia can make orders to prevent or allow children to be taken out of the country. Depending on the situation the Court orders can:
- Override a parent who is refusing to allow the other parent to travel overseas with their kids
Make an Order which means border control will not allow the children to leave Australia. If you do not have possession and control of your child’s passport, and you believe there is a high risk of your child being taken out of Australia by the other parent, there are options that include:
- Court orders to require the passport be surrendered by the parent who has possession of it
- Requesting the Australian Federal Police to put the name of a child on the Airport Watch List so that they will be stopped at customs and border control
Parental Consent
For parents who have separated or divorced, and who have agreed to child custody arrangements, consent agreements can include international travel conditions.
A typical consent agreement will allow for one parent to take their kids out of the country if:
- They give the other parent adequate notice of the travel plans
- They are traveling to a country that is a signatory to the Hague Convention
- They are traveling to a country with no active travel warnings
- The travel plans do not conflict with school attendance or other custody arrangements
If the travel plans do not align with the consent agreement already in place the two parents can still come to an agreement on a case-by-case basis.
If you’ve got more questions about travelling with children when separated or divorced, call our office to make an appointment with one of our family lawyers to discuss your matter further.
