Can I take my child overseas after family separation?

Parents wishing to travel with their children overseas after a family separation must be aware of certain provisions under the Family Law Act that require consent to be obtained from the non-travelling parent prior to travel.  Failure to obtain consent may result in the travelling parenting being penalised or denied at the border. This article will provide information for parents wishing to travel internationally with their child when subject to parenting orders by the Federal Circuit and Family Court of Australia.

For information about preventing a child from travelling internationally, refer to our upcoming article, ‘Can I prevent my child from travelling overseas after family separation?’

Requirements under the Family Law Act

The Family Law Act 1975 (Cth) permits a parent subject to parenting orders to travel internationally with their child where there is:

• Express written consent of each parent subject to the parenting orders, or
• A Court Order providing for the overseas travel.

Depending on the terms of your specific parenting orders, it may be a criminal offence under the Family Law Act to take a child outside of Australia without the other parent’s permission, or an order from the Court. This offence is punishable by up to 3 years imprisonment. To avoid being denied at the border, a travelling parent should take a certified copy of the Court orders, or a copy of the written consent allowing international travel to the airport when travelling.

If separated parents are unable to agree on proposed international travel, the travelling parent can make an application to the Court to seek orders permitting the travel. The Court will then determine if the proposed travel is in the best interests of the child. Prior to making any application to the court it may be necessary for the parties to first engage in mediation to resolve the issue.

Parenting Orders including International Travel Provisions

Parenting orders can include specific provisions for international travel. These provisions may include but are not limited to:

• the amount of notice a travelling parent is required to provide to the non-travelling parent of their travel plans;
• whether the itinerary is to be shared with the non-travelling parent;
• the contact details for the child whilst travelling; and
• how the child’s passport will be handled.

Where parenting orders stipulate that a parent have sole parental responsibility for their child, the orders may also provide that this parent can arrange international travel without the consent of the other parent. Although, this is not always the case and careful consideration ought to be had for the specific terms of the parenting orders.

Children’s Passports

Written consent of each person who has parental responsibility of the child is required prior to the child’s Australian passport being issued. If consent from either parent is not provided and cannot be obtained, a written request to consider issuing the passport due to special circumstances can be made to the Approved Senior Office of the Department of Foreign Affairs and Trade.

For more information about your legal rights and responsibilities when travelling internationally with your child following family separation, contact our experienced Family Law Team at Solari and Stock Lawyers. To speak with one of our team contact us on 8525 2700 or click here to request an appointment.

Remember to mention this article to receive your free 30 minute consultation regarding your matter.

Article written by Mia Doncevski
Photo by Hanson Lu on Unsplash