Does your parenting order cover your children if you wish to travel overseas? Penalties may apply for parents if you do not have authorising documentation or a parenting order covering your children to travel or leave the country with you. The potential embarrassment of being stopped by Immigration at the airport and denied permission to travel would be enough to ruin your holiday. A surprising number of separated parents travelling with their children but without the children’s other parent, do not realise they need formal consent from the other parent for the children to leave Australia.
If there is a Court Parenting Order in place, which allows overseas travel, the travelling parent should take a copy certified by a lawyer or justice of the peace to the airport with them. If there is no court order, you will need written permission from the other parent witnessed by a Lawyer or Justice Of The Peace.
Many parents want to travel with their children, but they may not realise any legal restrictions to do so.
If there are parenting orders in place, one parent taking the children out of the country will require the other’s permission. If you ignore this, it is a criminal offence under the Family Law Act.
If there are no parenting orders in place but someone has filed an application seeking orders, the same applies.
Both parents have to sign a passport application unless you convince DFAT of special circumstances (eg; father unknown or out of contact for prolonged period) or get a court order.
A key question for those allowing their former partner to take the children overseas is whether you should be allowing your children to go overseas if the other parent wants to take them?
International travel is now a standard part of many, even most, children’s lives. Travel can offer children a vast array of important experiences and may also enable a child to maintain ties with overseas family. For many people, international travel for their child with their other parent is not something of concern. But for others, it may be highly concerning.
If you want to travel overseas with your child or want to prevent your child from travelling overseas, you should seek advice about this from Sarah Bevan Family Lawyers prior to making any arrangements for travel. If you have concerns your child is about to be abducted overseas, act with urgency.
Parents should be aware of the restrictions on overseas travel contained in sections 65Y and 65Z of the Family Law Act (the Act) which, if breached, can lead to up to 3 years imprisonment.
Measures to prevent overseas travel include considering a Child Alert to prevent the issue of an Australian passport.
Another option is to consider having the children placed on the Family Law Watch List (previously referred to as the Airport Watch List). This will require proceedings to be commenced (which will also invoke s. 65Z of the Act).
The key to international child custody issues is the Hague Convention, an international agreement whereby more than 90 signatory countries agree to uphold child custody orders from other signatory countries, should a parent move or retain a child between countries without consent.
Parents wishing to take the children on holidays interstate have more flexibility. There is no restriction on travelling anywhere in Australia during the time the children are in the care of a parent, unless specifically prohibited in a court order.
If not specified in an order, you don’t have to provide details of where you are staying or going. However, it’s common courtesy and makes for good co-parenting if you let the other parent know if you are going away with the kids, especially in a country like Australia where we have natural disasters and parents can worry. Ask yourself if you would want to know where the kids are when they are travelling.
For parents still together but having separate holidays, no special permissions are needed for the children to travel with one parent.
However, if one of the parents has a different surname from the kids the border authorities may phone the other parent to check.
If you are planning a holiday with your children and need legal advice Sarah Bevan Family Lawyers are specialists in the area of child parenting orders and the Hague Convention. Call Sarah our Accredited Family Law Specialist today for further information.