Overseas travel with a child or children after separation can lead to stress and anxiety. This may be due to concerns that a child will not be returned, or frustration when it is difficult to obtain one parent’s consent for a child to travel for a family holiday or life experience. This is a time where trust and cooperation are tested, and emotions strained.
The unauthorised removal of a child from Australia may result in a penalty of three years’ imprisonment. It is important to understand the legal position when proposing international travel with a child after the parents separate.
Can I take my child overseas after we separate?
The requirements for obtaining consent to remove a child from Australia are set out in the Family Law Act 1975 (Cth).
It is unlawful to remove a child from Australia if there are parenting orders in place or proceedings underway with respect to the making of a parenting order, unless authenticated consent in the prescribed form is obtained from the non-travelling parent. If consent is denied, a person must apply for a Court order before the child will be permitted to travel.
It is also an offence to retain a child overseas for longer than provided in a parenting order or contrary to the consent of the other parent where parenting proceedings are pending.
Parenting orders deal with matters such as with whom a child lives and spends time, the allocation of parental responsibility for a child, processes for communication with the child and when or how a child may travel. The parties affected by a parenting order should ensure that they understand and comply with the conditions imposed.
Any restrictions on taking children overseas and the prescribed penalties apply not only to the parties to a parenting order or proceedings, but to any person acting on their behalf (such as a grandparent).
If a parent or person with parental responsibility opposes the child travelling overseas and can show that there is a risk that if removed, the child may not return, the person concerned may apply for a Court order preventing the child from leaving Australia. The child can be placed on the Airport Watchlist (also known as the Family Law Watchlist).
If orders are in place that unconditionally prevent a child from travelling internationally, then a person wishing to remove that condition must apply to the Court. In such cases the best interests of the child will prevail, and the Court will consider:
- the applicant’s ties to Australia and intention to return with the child;
- the proposed country of destination and date of return;
- the authenticity of the application;
- the possible effects on the child on being away from another person;
- the potential threat to the child’s welfare including whether the country of destination is a signatory to the Hague Convention on Child Abduction;
- whether a bond (security) should be imposed and, if so, the amount.
Even if there are no orders in existence or proceedings pending, it is almost always inappropriate and unwise to remove a child from Australia without the consent of both parents or guardians. In any event, full parental consent is generally required to obtain a passport for a child, so in most cases it will not be possible to travel overseas unless consent is obtained.
If you are separated and are considering travelling overseas with your child, you should discuss these plans with your legal advisor well in advance.
Obtaining a passport for a child
Generally, an Australian passport for a child will not be issued without the consent of both parents or all parties with parental responsibility for the child.
The law recognises however that in some circumstances, consent cannot be obtained, or consent may be unreasonably refused. In such cases there are processes in place for the party applying for the child’s passport to seek a remedy.
Essentially, if the matter does not concern the non-consent of a party to the application (for example, where a child’s parent cannot be located) or, there are no orders in place restraining the child from travelling, an application may be made requesting an administrative decision to issue the passport without full parental consent. In such cases, the Minister will consider:
- the history and existence / non-existence of the non-consenting parent’s contact with the child;
- the capacity of the non-consenting parent to give consent;
- whether the non-consenting parent can be located and the attempts made to locate that person;
- the possibility that the non-consenting parent is missing or dead;
whether a family violence order exists.
If the applicant is unsuccessful in the administrative review process, only then can an application proceed to the Court for issue of the passport.
The applicant will need to give clear evidence of the genuine attempts made to obtain consent. This includes efforts to locate and notify the non-consenting party of the application or, the reasons why such attempts were not made.
The Court will order the issue of a passport only in extraordinary circumstances.
Failure to follow the correct process of administrative review before applying to a Court could delay your travel plans resulting in significant cost, inconvenience and disappointment. It is therefore recommended that you obtain early legal advice if you believe that your proposed plans are likely to be frustrated by your ex-partner.
A Child Alert Request may be lodged by a person with parental responsibility of a child at the Department of Foreign Affairs and Trade if there are concerns that an Australian passport may be issued without both parents’ consent.
Conclusion
The unauthorised removal of a child from Australia may result in significant penalties.
In most cases, consent from both parents is required, and appropriate to travel internationally with a child.
If you are unable to obtain full parental consent for the issue of a child’s passport you must go through the administrative review process before applying for a Court order.
If you have genuine concerns that a child may be unlawfully removed from Australia and believe there is a risk that the child will not be returned, you should seek urgent legal advice regarding a Court ordered injunction.
For urgent concerns contact the police immediately.
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