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When you’re separated and want to take your children out of the country, it’s not as easy as buying a ticket, packing bags and heading off.
You need to understand your legal rights and responsibilities before embarking on an international trip. Here is some information you need to think about, whether you’re the parent travelling overseas or a parent faced with your children travelling overseas without you.
I’m separated but want to take my children on an overseas holiday. Do I have to get the other parent’s consent?
Yes. This is because international travel is a major event in your child’s life. Your child will be taken out of Australia, exposed to different cultures and experiences, may miss some school and could be exposed to risks overseas. The other parent’s consent is also important because travel likely means suspending their time with your child. They have to agree to this.
What if I can’t reach an agreement?
If you can’t get the other parent’s agreement, you may apply to the Federal Circuit Court for a parenting order allowing the child to travel with you overseas. Before applying, the Court requires you to try to mediate an outcome with the other parent. Call Relationships Australia or the Family Relationships Centre for such help. If these services are too busy, get private mediation (counsellor or psychologist). If this doesn’t work, get legal advice about where you stand ASAP.
How does the Court make their decision?
The overall question the Court asks is if the travel is in the child’s best interests. The most important factor is if the Court is satisfied that the travelling parent will return with the child. The Court’s primary consideration is to protect a child’s meaningful relationship with both parents. This won’t be possible if one parent absconds with a child to another country.
To decide, the Court will be interested to know about the travelling parent’s:
- Ties to Australia, such as owning real estate, having business interests here, family and close friends living here, and whether they have a job in Australia.
- Possible motives for not wanting to return, such as conflict with the other parent.
- Possible motives for wanting to live overseas, such as owning property in another country or having family and close friends living in that country.
The Court must weigh advantages and disadvantages of the international travel and consider things like:
- Length of the trip, the itinerary, and travel insurance
- Effect of being away and whether the child will be able to keep up contact with the other parent, for example through Skype or Facetime
- Threats to the child’s welfare because of the overseas environment and how safe the country is
- Benefit of the child experiencing international travel, particularly if lifestyle, culture and traditions are important to their background
- Whether the country is a signatory to the Hague Convention, an international treaty setting out legal procedures for returning abducted children to their home country.
In many cases, the Court requires the travelling parent to raise a security (like a bond) before travelling. This is to entice the travelling parent back to Australia and can be used by the parent here to start proceedings to have their child returned or travel to where their child is to find them.
How can I assess if an overseas destination is appropriate? How does the Court decide?
The biggest factor for the Court is if you’re travelling to a country that is party to the Hague Convention. Find a list of signatory countries at www.hcch.net or by calling the Commonwealth Central Authority on 1800 100 480. Another tool is the Department of Foreign Affairs and Trade’s Smart Traveller country pages.
I’m worried my partner will take my children overseas without my consent. How can I prevent this?
You can apply to the Court for an order restraining the other parent from taking your child overseas. You can also apply for an Airport Watch List Order. This places your child’s name at all points of departure from Australia (airports and ship ports). The Australian Federal Police won’t allow a child to leave Australia if their name is on the list.
If you’re concerned that international travel will be an issue, it’s a good idea to get specialised family law advice long before travel plans are on the table. There are many types of parenting arrangements and orders around international travel. It’s far better to have arrangements and orders in place from the beginning rather than facing urgent and costly litigation during your holiday.
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