By Chelsea Benac, Lawyer
For separated parents, organising an international holiday with your child can be a tricky space to navigate, especially if the other parent objects to the proposed travel.
When planning to travel overseas with your child, it is important to know and consider the legal obligations you have as a co-parent before you book your flights and make any concrete plans.
We have set out the top five questions and answers below:
Do I need permission to travel overseas with my child?
Yes. Before you take your child overseas, you must get consent from anyone who shares parental responsibility for that child or alternatively, there must be a current Family Court Order in place that permits the travel.
Unless a Court Order specifies otherwise, by default, each parent of a child under the age of 18 has parental responsibility for that child.
If there are Court Orders in place (or if there are current Family Court proceedings on foot), you may be committing a criminal offence if you take your child overseas without the written consent of each party or without permission from the Court.
How can I get the other parent to agree?
If you and the other parent are still building your co-parenting relationship, it may be uncomfortable or difficult asking them for permission to travel abroad. The other parent may also have genuine concerns about your proposed travel, for example, if the destination is not a signatory to the Hague Convention (which provides a lawful procedure to seek the return of an abducted child back to their home country) or if the destination is not safe.
Ideally, it is preferable if you can get the consent of the other parent in writing.
Below are some points to consider before you raise the possibility of an international holiday with the other parent:
- If you can, try to give as much notice as possible to the other parent before your intended travel, to avoid any unnecessary surprise or stress.
- Prepare a detailed itinerary for the other parent to consider, that includes proposed return flight options, accommodation details and contact information for anyone that you might be visiting when you are overseas. The more open and upfront you are, the better. Part of your proposal should include providing full copies of the tickets, once purchased (you should not purchase them until you have the other parent’s consent to the travel).
- Propose regular telephone or Facetime calls with the other parent when you are overseas to ensure the child stays in regular contact with them, and help them feel included in your child’s adventures.
- Consider offering “make-up” time with the other parent upon your return, especially if the other parent will miss a large block of time with your child when you are overseas.
- Remember that successful co-parenting involves cooperation and compromise. Be prepared to negotiate on the travel arrangements, whether it be the length of the trip, the type of accommodation you use or even the destination itself.
What can I do if the other parent still won’t agree?
If the other parent refuses to provide their consent, you may consider engaging in a form of family dispute resolution (eg mediation) to help you reach an agreement together.
If you are still unable to reach an agreement, you may be left with no other option but to file an Application with the Federal Circuit and Family Court of Australia (aka “the Court”) to seek an order permitting the overseas travel. Just remember that unless certain exceptions apply, you are required to engage in a form of family dispute resolution before you commence Court proceedings.
What if I suspect the other parent is planning on taking my child overseas without my consent?
If you are concerned that your child may be removed from Australia without your permission, you should immediately seek family law advice.
You can make an urgent Application to the Court to prevent or restrict a parent from taking a child overseas.
In these circumstances the Court may make the following orders:
- Restrain the removal of the child from Australia and request that the child’s name be placed on the Family Law (Airport Watch) List (which prevents the child from leaving Australia from all departure points).
- Order the delivery of the child’s passport or the accompanying adult’s passport to the Court for safekeeping.
- Prevent an Australian passport being issued for the child.
Do both parents need to sign a Passport Application?
Usually, yes, both parents are required to sign a Passport Application (or renewal) for their child under the age of 18 years.
There are some circumstances where both signatures are not required as set out in Section 11 of the Australian Passports Act 2005 (Cth).
The Court also has the power to make an Order which requires The Australian Passport Office to issue a passport on behalf of a child, even without one or both of the parents’ signatures.
It’s important to obtain legal advice as soon as possible if you require a passport for a child and are having difficulties as0this process is not a quick one. If you wish to travel overseas with your child or you hold concerns that your child may be removed from Australia without your consent, call us on 02 6248 8477 or contact us at hello@fosterjohnson.com.au
