Child Travelling Overseas After Separation
For a parent, travelling with a child can be an important bonding experience and create life-long memories. Unfortunately, taking a child travelling overseas after a separation or divorce is often a more complicated process. A child travelling with one parent outside Australia can cause anxiety in the other parent. In the worst-case scenario, one parent may take a child overseas under the guise of a holiday and refuse to return the child to Australia. This article looks at the legal implications of taking a child overseas after separation or divorce.
Mutual Agreement for Child Travelling Overseas
Most parents share parental and custodial responsibility following separation or divorce. The agreement to share responsibility will usually be formalised into a parenting plan setting out the dates when the child will be with either parent.
A parent wishing to take a child travelling overseas, even for a short holiday, should notify the other parent well before the day of departure. If the planned trip encompasses dates where the travelling parent does not have custody, then the parent must ask permission from their co-parent to alter the custody arrangements.
Under the Family Law Act 1975, a parent can withhold consent for their child to travel overseas. If the co-parent refuses, it is best to work with them to see if there is any scope for negotiation. It is possible to consult a solicitor for advice about compelling the co-parent to agree, but on balance, this is not a recommended course unless there is a reason that the trip is particularly significant for the child.
Applying to the Court for Permission for a Child Travelling Overseas
If the parents are involved in a family law proceeding, they can make an application to the court seeking to take a child travelling overseas. The parent must file a supporting affidavit giving a statement of the facts, covering all relevant points, including:
- The purpose of the travel, including an itinerary of the trip if possible
- The connection that the people travelling have to Australia
- The immigration status of the travellers
- Whether the country is a Hague Convention signatory
- Whether any travel warnings have been issued for the destination country
- Whether the travelling parent is willing to commit to paying any damages that another party suffers as a result of the order
- Whether the parent is willing and able to provide security in the form of a monetary sum.
- Any other factors relevant to the case
Applying to the Court to Prohibit a Child Travelling Overseas
It is a genuine worry for some parents that their former partner will take their child travelling overseas and not return. If a parent has cause to believe that their child may be imminently removed from Australia, they can file a court application with the Federal Circuit Court (or the Family Court if the parties have a current parenting case before the court), as an urgent matter prohibiting the child travelling overseas.
The court can impose either an absolute or conditional prohibition on travel. An example of a ‘conditional’ exception may be a court order that the child can only travel overseas if both parents agree to the travel plans. The court order ensures that a Passenger Analysis Clear and Evaluation (PACE) alert is placed on the child, which can be used to prevent a child from leaving Australia.
It is an offence for a person to send or take a child out of Australia in contravention of a court order that limits the travel of the child. It is also an offence for someone to take a child out of Australia if there are pending court proceedings or appeal proceedings relating to a parenting order. A breach of this offence is punishable by up to three years in prison.
Family Law Watchlist
Once the court makes an order preventing or limiting a child’s travel, the parent can file a request for the child to be placed on the Family Law Watchlist. The Australian Federal Police administer the Watchlist, but it is rare for them to add a name to the list without a valid court order. This allows the Federal Police to stop a child from departing from any international travel point in the country, including airports and seaports.
The court orders that place the child on the Watchlist expire when the child turns eighteen unless they are ended earlier. Some court orders contain a ‘sunset clause’ stipulating a date when the order expires, typically after two years. If there is no such clause in the order then once the child’s name has been added to the list, another court order is necessary to remove the child from the Watchlist.
The Hague Convention
A parent may apply to the Federal or Family Court to restrict the child’s travel to certain countries, such as only allowing travel to countries where Australia has a treaty under the Hague Convention.
If a child is removed from Australia without a parent’s consent, it is designated an international child abduction. If the child was taken to a country that is a signatory to the Hague Convention, then the parent can compel their return under the provisions of the treaty. This treaty provides a way for parents in participating countries to seek the return of their children to their home country and specifies the jurisdiction where custody and residency issues will be resolved.
If a child has been removed to a country that is not a member of the Hague Convention, there are still avenues to pursue in seeking the return of the child. Parents should contact the Consular Branch of the Department of Foreign Affairs and Trade.
If a child does not have a passport, it is obviously much easier to prevent that child travelling overseas. Under Australian law, both parents are required to sign the application for a child’s passport, thereby giving unanimous consent for the travel documents to be issued. If a parent is concerned about the safety of their child they can refuse to sign the child’s passport application.
A parent, or person who has parental responsibility, can also lodge a Child Alert Request with the Australian Passport Office. This Request will give notice to the Department of Foreign Affairs and Trade that as a parent you do not give consent for your child to be issued a passport, and that the department should be aware that there are factors that need to be considered before a passport can be issued. It must be noted that if a child is entitled to a passport under the Australian Passports Act 2005, then a Child Alert does not necessarily prevent the issuing of a passport. A Child Alert only applies to Australian passports and remains current for 12 months. A parent may also apply to the courts for an injunction to prevent a passport being issued to a child. The application must state compelling reasons why the parent believes that the child should be denied a passport.
If your child has been taken to another country without your permission, you should contact the Commonwealth Attorney-General’s Department immediately on 1800 100 480. The family law experts at Armstrong Legal can help you with all matters related to a child travelling overseas after a divorce or separation. Please call 1300 038 223 or send an email to make an appointment with one of our friendly, professional family lawyers.