Traveling Overseas with Your Child Post-Separation

Traveling internationally with your children can be a rewarding experience, but when it comes to children from separated families, some careful planning is required.

Court orders in place

 If your child is the subject of parenting orders, it is illegal to travel overseas without the written consent of all parties involved, or unless the parenting orders expressly allow for such travel. If neither of these apply, and you proceed to take your child overseas you may face serious consequences, including criminal penalties.[1]

This also applies where there are court proceedings involving your child on foot, but an order has not yet been made.[2]

If the other parent does not provide their consent, or the orders do not provide for international travel, you may need to apply to the Family Court.

Further, if it is appropriate in the circumstances, you may also need to try engaging in family dispute resolution, such as a mediation, to try and reach an agreement with the other parent prior to making an application.

Even if parenting orders allow for international travel, there may still be some specific conditions which you must follow. In some cases, the orders might still require you to obtain consent from the other parent. They might also require you to:

• provide the other parent with notice of your in intended travel;
• provide the other parent with the details of your flights and accommodation; or
• arranging for the child to have ‘make-up’ time with the other parent.

If you disregard these conditions, you would be in breach of the court orders.

No court orders in place

Where there are no court orders in place (or there are no parenting proceedings currently on foot) but you do have a parenting plan or some other alternative arrangement, it is still in your child’s best interests to obtain consent from the other parent before taking your child overseas.

You partner may have legitimate concerns about their child being taken overseas, and you should be prepared to address these concerns, for example you should consider:

• Providing a detailed itinerary, including your travel destinations, dates, flight details, accommodation details and any contact information;
• Making arrangements for your child to have regular contact with the other parent, including telephone and video calls;
• Agreeing for your child to spend “make-up” time with the other parent if the travel means they will interfere with the time they ordinarily spend together;
• Provide as much notice of the travel as possible;
• Try to avoid travel during special occasions (such as birthdays or Christmas) on which the other parent may want to see the child.

If you don’t try to reach an agreement about the travel or have not provided them with sufficient notice or information, the other parent may apply to the Family Court for an injunction to restrain you from leaving the country with the child or to have the child placed on the AFP Watch List.

Passports

You should also keep in mind that your child will require a valid passport for any overseas travel. Consent from both parents is typically required to obtain one.

If the other parent withholds consent, you will likely need to seek a court order for this purpose.

 Takeaways

Obtaining consent is from the other parent is key

• Take steps to try and obtain consent to avoid making an application to the court.

 Communicate openly and early.

• Providing adequate notice to the other parent early not only allows them time to voice any concerns they have but also gives you the opportunity to explore alternative options should they withhold their consent.

Carefully review any parenting orders in place and consider any additional steps which you may have to take.

• If you do not understand your obligations under the orders, you should seek legal advice.

 Be prepared to address any concerns which the other parent may have.

•  It may be worth taking some extra steps to ease the mind of everyone involved, even where you think it may be unnecessary or over the top.

 

If you are planning to travel internationally with your child and are unsure about your rights and legal obligations, our team at O’Sullivan Davies can assist you.

Contact us today to schedule a consultation and take the first step towards securing your future.

[1] Family Law Act 1975 (Cth) s65Y; Family Court Act 1997 (WA) s107.

[2] Family Law Act 1975 (Cth) s65Z; Family Court Act 1997 (WA) s108.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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