Travelling overseas with your children
The fact is that parents have an equal shared parental responsibility with respect to their children. Therefore, decisions such as going on holidays overseas requires both parents’ consent.
Travelling is an important part of life for many families, however, since the onset of the Coronavirus pandemic, travelling with your children (whether you are separated or not) has become increasingly risky, more so now that international boarders open on 1 December 2021.
If you find that you or your partner wishes to travel with your children, there are legalities around travelling overseas and we will clarify these for you.
Traveling overseas with children
If you wish to travel overseas with your children, you must obtain the consent of the other parent or have a Family Court Order permitting you to depart Australia with your children.
If both parents are unable to reach an agreement for their children to travel overseas, then an application can be made to the Court seeking an Order allowing your children to travel with you.
If you realise that your children are travelling overseas with one parent without your consent, you can make an urgent Application to the Court stopping your children from travelling by placing their names on the Commonwealth of Australian Federal Police Family Law Watchlist. Once you file your Application, the children are automatically listed on the Airport Watchlist.
An Airport Watchlist Court Order is an Order which is sent to the Australian Federal Police (AFP) to put your children’s name on the Watchlist. The Watchlist is in place at all international airports and seaports. If a parent tries to take their children out of the Commonwealth of Australia, Customs will notify the AFP and stop the children from being able to leave.
Applying for a Family Court Order
If you or the other parent intends on applying for a Family Court Order to either restrain your children from travelling overseas or to obtain an Order from the Court to travel overseas, you should seek legal advice about what Orders should be sought prior to making such an Application to the Court. Obtaining legal advice may assist both parties in reaching an agreement where the non travelling parent consent to the travelling parent going overseas with the children. There may also be conditions put in place to ensure the children are returned to Australia. The legal advice may even avoid an Application being made to the Court.
When making your application to travel with your children overseas, you should consider: -
The best interests of the children.
The reason you want to travel with your children;
If there are any travel restrictions with respect to where you are travelling and the country you are traveling to;
The length of time the children will be overseas;
The amount of time the child will be away from the other parent and whether make up time should be proposed;
When you intend on travelling back to Australia;
How the children will contact the other parent whilst the children are away, for example via phone, zoom or facetime;
Vaccination recommendations for the country the children are travelling to;
Ensuring the children have the appropriate medical insurance to travel; and
Travelling to a Hague Convention Country.
The Hague Convention is an agreement between Australia and signatories of the convention about international child abduction and child access. The Agreement provides a process through which a parent can seek to have their child returned to their home country.
The list of Countries can be found on the Attorney General’s website.
When making an application to travel overseas with your children, some common Orders sought are as follows: -
Obtaining specific Orders for a passport for the children if they do not have a valid passport;
An Order where the itinerary of the travel arrangements including the country of travel are provided to the non travelling parent;
An Order providing the non travelling parent with copies of the returned flights;
An Order providing details of the children’s accommodation and contact phone numbers to the non travelling parent; and
Proof of recommended vaccinations for the country the children are travelling to the non travelling parent.
The travelling parent must satisfy the Court that he/she will be returning to Australia. The Court will consider the travelling parents:-
Link to Australia;
Link to the country they intend on travelling to with the children;
Employment status;
Assets and liabilities in Australia (do they own a home registered in their name?)
Family including relatives in Australia;
Whether the country they are travelling to with the children is a Hague Convention Country; and
Whether the country they are travelling to with the children has travel warnings.
The Court will consider the risk of the children not returning to Australia, when considering making an Order permitting the children to travel overseas. If there is a risk, the Court may order conditions such as paying a sum of money as security to ensure the children are returned to Australia.
Passports
If the children do not have a valid passport, both parents must sign on the application to either obtain a passport or renew the passport. If one parent refuses to sign the application, then you will need to seek an Order from the Court for the passport to be issued.
If you believe your children are at risk of travelling overseas without your consent and they do not have a valid passport, you can contact the Passports Office and list the children’s names on the child alert list. If the children’s names are on the alert list, the Passport Office will contact you if an application for a passport is made to discuss the application. This does not guarantee an Australian passport will not be issued.
You should note that your children may be eligible for a passport from another country if they have dual citizenship. You should contact the relevant embassy of the country which your children have dual citizenship to discuss the options available to you.
Overall, it is illegal to take children overseas without the consent of both parents or without a Court Order. If you are in a situation of either a parent wanting to travel overseas with your children and the other parent will not grant permission or you are fearful your children will be taken overseas without your consent, then we strongly recommend that you seek legal advice to ensure you go about this in a child focused manner and in the best interest of your children.
If you want to talk to one of our specialist family lawyers about your child travelling overseas either with you or their other parent, then please contact us on 03 9596 0222.
Author: Sanaz Naimi Roshan, Lawyer (Accredited Family Law Specialist)
