By Gianna Huesch
So the school holidays are here and you want to take your kids on a holiday. What are the rules about travelling interstate or overseas when you share the care of your children? Are you legally obligated to advise them of your travel plans?
Travelling within Australia is unrestricted for children during the time they are in the care of their parent, unless this is specifically prevented by a court order. You may have orders which prevent you taking your children out of a particular state or territory, even if it’s just for a holiday, so it’s important to check your orders carefully.
If you have a disagreement with your co-parent about interstate holiday travel, it’s recommended you try to reach agreement with them about arrangements.
It may or may not be specified in a court order whether you must provide your co-parent with details of your holiday arrangements. Even if it is not ordered, we recommend letting the other parent know your plans, as a sign of cooperation and as a courtesy that you would hope and want to receive in return from them.
If you’re travelling with your children but without their other parent, you need the other parent’s formal consent for your children to leave the country.
You may have a parenting order from the family court allowing overseas travel for your children. If this is the case, make sure you take a copy of it (certified by a JP or solicitor). If you don’t have a court order, it’s necessary to obtain written permission from your co-parent (witnessed by a JP or solicitor). Ignoring the requirement to obtain permission is a criminal offence under the Family Law Act 1975. The same will apply even if there are no parenting orders yet in place but your co-parent has filed an application seeking orders.
It’s also necessary for both parents to sign your child’s passport application. In limited special circumstances (for example, where the father is unknown or a parent has been out of contact for a significantly long period) it may be possible for DFAT to issue the passport without both parents’ signature. You may also be able to get a court order in relation to the passport application.
If you wish to take your children overseas and your co-parent objects, you will have to apply to the court.
If your co-parent refuses to sign the passport application and you believe this is unreasonable, it’s possible to apply to the court to have the child’s passport issued without your co-parent’s consent. It is up to the court then to determine whether the travel is in the child’s best interests, and what the risk is of the children not returning to Australia. In some cases, conditions (for example payment of a security) are imposed to ensure the children’s return.
If your co-parent is the parent wishing to travel overseas with your kids, and given the terrible experience of parents whose ex-partners have taken their children on holiday overseas and not returned them to Australia, it’s important to be conscious of whether the country your partner wishes to travel to with the kids is one that is a signatory to the Hague Convention, which can uphold child custody orders from other signatory countries.
However, if you have any concern at all over your co-parent’s travel plans, you may wish to consider preventing your child’s travel completely, for instance by having the child placed on the Family Law Watch List, or considering a Child Alert which will prevent the issuing of an Australian passport.
Do you need assistance with reaching agreement with your ex regarding travel plans for your kids? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.