家庭法消息Overseas travel after separation

With COVID-19 lockdowns and overseas travel restrictions lifted, many of separated parents wish to travel overseas with their children after being prevented from doing so for a number of years.

If there are Parenting Orders that provide for the children to travel overseas, the parent wishing to travel with the children must comply with those Orders. This will likely include providing the other parent with proposed dates, locations, itinerary details and flight details of the holiday by a specific date prior to the proposed travel.

If there are no Parenting Orders in place and the parents share parental responsibility of the children, consent must be obtained from the other parent for the children to leave the Country.  The Family Law Act 1975 defines parental responsibility as all duties, powers, responsibilities and authority parents have in relation to children‘.  In the absence of Court Orders, there is a presumption that both parents have shared parental responsibility pursuant to the Family Law Act 1975.

When the other parent does not agree to the proposed travel or will not facilitate the execution of the passport application, parents should first attend Family Dispute Resolution Conference with a qualified facilitator.  If an agreement cannot be reached at the Family Dispute Resolution, then the travelling party will be left with no option than to issue proceedings in the Federal Circuit and Family Court of Australia.  When determining an application to travel with children overseas, the Court will consider the following factors:

1. The reason and length of the travel;
2. Current living arrangements for the children and their circumstances;
3. Whether the travel is to a country which is a signatory to the Hague Convention;
4. If any travel warnings been issued with respect to the country the children will be travelling to; and
5. The likelihood that the travelling parent will bring the children back to Australia.

If the Court grants the application, restrictions and requirements on the travelling parent such as “bond” may be implemented.

Alternatively, if you are concerned about your child being taken overseas without your consent, you may apply for your child to be put on the Airport Watchlist.  For your child to be added to the Watchlist, you must complete the Watchlist request form and then file an application with the Court.

If you need any help or further information on overseas travel, please reach out to our Family Law Team at SLF Lawyers.