Now that overseas travel is back on the cards (hooray!), what do you need to know about co-parenting and travel arrangements? Let’s recap.
As we transition into a post-pandemic world, many families are considering international travel again. Whether it’s for a much-longed for reunification with overseas relatives or simply the wish to take your kids to see the world, perhaps you too are considering an overseas trip with your children. But what happens if you are separated and share the co-parenting of your children? What’s important to know about travelling with children and what are your legal obligations? Let’s take a look.
The most important thing to realise in relation to overseas travel with children is that the appropriate permissions need to be obtained in order to avoid any problems.
When do you need to obtain your co-parent’s permission for the kids to travel?
If parenting orders exist, or if a parenting proceeding is already on foot in the court system, then you may not remove your child from Australia without the written permission of the other parent. Under section 65Y and section 65Z of the Family Law Act 1975, this is an offence punishable by up to three years’ imprisonment.
If you share parental responsibility for the child, you need to obtain permission from your co-parent. If you have sole parental responsibility, you do not need to obtain permission from your co-parent, although it’s still recommended that you advise them of your plans.
If you are negotiating parenting orders outside of court, while you are in the process of negotiating, ensure you build in permission regarding travel with the children. Once your orders are final, if you haven’t built in an international travel provision, then you will still need written permission from your co-parent.
How do you get permission from your co-parent?
Written permission should be obtained from your co-parent, whether directly or through your family lawyers. The permission should be a notarised consent form (witnessed by a JP or solicitor) provided by the non-travelling parent.
Your co-parent may impose conditions on your travel. For instance, you must provide adequate notice before travel takes place, or you may be restricted as to which countries you may visit (potentially affected by Government travel advisories and/or whether the country is a signatory to the Hague Convention).
What can you do if your co-parent does not give permission?
If your co-parent doesn’t agree to allow the children to travel, you will have to apply to the court for a decision on the issue. The court will then decide whether the travel is in the children’s best interests and if there is any risk of them not being returned to Australia.
Applying to the court involves providing the court with all the information that it will need to make a decision, including full details and reasons for the travel, whether there are any travel warnings for the country, whether the country is a Hague Convention one, the immigration status of those travelling, their links to Australia, and anything else that may be relevant.
Your child’s passport
Both parents will have to sign your child’s passport application (some exceptions apply, such as if the father of a child is unknown). If there is no agreement between you and your co-parent, you will need to apply to the court for a court order relating to the passport. (Find out more information on the issuing of passports here.)
What documents should you take with you when travelling overseas?
It’s vital that you take all the necessary documentation with you when you travel overseas as it will usually be needed at Australian and foreign borders.
- The written consent (notarised consent form) from your co-parent, together with contact details of the non-travelling parent.
- Copy of orders showing an international travel clause (certified by a JP or solicitor).
- Proof of your relationship with your child (birth or adoption certificate).
- A change of name deed if your name has changed since your child was born. You might also consider bringing an expired passport showing your name at your child’s birth.
- A divorce or marriage certificate if you and your child’s surnames are not the same.
- The trip itinerary.
What if you don’t wish to allow your co-parent to take the kids overseas?
If your co-parent is the parent wishing to travel overseas with your kids, and given the harrowing 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.
If you are the non-travelling parent and have any concern at all over your co-parent’s travel plans, you may wish to consider preventing your child’s travel. For instance, you can have the child placed on the Family Law Watch List (sometimes also called the Airports Watchlist or the All Ports Watchlist), apply to the court for an order that prevents a passport being issued for the child or prevents the child from leaving Australia.
If your child has been taken out of Australia without your permission, contact the Attorney-General’s department urgently on 1800 100 480. (See here for more information.)
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 Family 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 Family Law.