In my work as a Family Lawyer, one of the things that I see most worry parents when they have separated is the prospect of their child going overseas with their former partner.
Coming up to Christmas school holidays and the opportunity they create for children to spend longer blocks of time with their parents, these issues often become more and more common.
As the father of a very little girl I’m sure I’ll be nervous when she has her first sleepover at a friend’s house, so the concerns about overseas travel are very understandable.
On the other hand, I am always so glad that I had the chance to travel to many faraway places when I was a child and I hope my daughter and her future sibling gets the same opportunity. When I was 11 I spent 5 months travelling around Australia in a caravan with my mum, dad and 8 year old brother. I think I learnt more in that 5 months than I would have in school, just by being in places that are different and absorbing everything that was going on around me.
I also spent about a month in Europe when I was 15 on a school trip (and don’t think just because it was a school trip we were mollycoddled, in my first year of high school our school camp involved swimming across a river while carrying all of our food, camping gear and clothing).
Being half a world away from me would no doubt been a very stressful time for my parents, but for me it was an incredible experience that will stay with me forever and I am so grateful to mum and dad for both letting me go and paying for the privilege.
The things that I’ve taken from my experiences is that travel is something that you benefit from at almost any age in the right circumstances, and that whilst the parents are chewing their nails at the thought of their kids being so far away from them, the kids are having a great time and most importantly learning about themselves and the world around them.
Often, the thought of overseas travel brings in a whole new level of concerns for many parents. The concerns that I see the most are generally along the following lines;
- Will my child be looked after well enough while they’re away?
- Will I be able to be in contact with my child?
- Will my ex-partner be doing things with our child that I don’t want them to be doing?
These are all normal, reasonable concerns to have when your child is going overseas. In my experience, a lot of these issues can be dealt with by some discussions and coming to an agreement about the ground rules that will be in place for the duration of the trip. If there are concerns about homework being done or the appropriateness of the activities planned, communicating with your ex-partner about those concerns is often a good place to start.
If you and your ex-partner cannot agree to arrangements that should be in place for your child on any proposed overseas trip, then it may be necessary to take further steps in relation to what should occur if and when your child travels overseas. It may be a good idea to convene a mediation to attempt to reach an agreement, and Court Orders and parenting plans can set out what should occur if a child is to travel overseas. Having your agreement documented sometimes goes some way to easing the concerns that parents have about their kids.
Thankfully less common are what I would call the “scary concerns”. These are the concerns that arise when a parent is not sure whether their child would come back if they did go overseas, or, even more worryingly, that they are unsure whether their child who is overseas is going to come back.
While these are thankfully rare occurrences, they do occur from time to time and need to be taken seriously by everyone involved.
When there is a risk that a child will be taken overseas without the consent of their parents, there are a number of possible options available, depending on the individual circumstances.
What Can I Do?
The options available to you are dependent on a few different things. As travel out of Australia is usually by airplane (though cruises and other forms of sea travel are fairly normal) and we live on a geographically isolated island, it is fairly difficult (but not impossible) to smuggle someone out of the country without going through some form of government checkpoint.
If you are in this position you should seek legal advice as soon as you can. If you can’t afford to see a lawyer, contact Legal Aid to see if they can help you and if not, there are community legal centres and other services that may be able to help out.
My Child Doesn’t Have A Passport (Or Other Equivalent Travel Documentation).
The first thing to consider is whether your child has a passport. If not, then it’s possible to apply to the Department of Foreign Affairs and Trade and apply for a Child Alert by obtaining the necessary form from the Australian Passport Information Service or from a passport office and returning it to the Department of Foreign Affairs and Trade.
Generally, a passport cannot be issued to a child unless there is the consent of all people who have parental responsibility for that child. It is possible, however, in some circumstances to have a passport issued to a child without the consent of all persons who have parental responsibility for the child. However, it requires a special consideration by the Department of Foreign Affairs and Trade.
The form will alert the Department of Foreign Affairs and Trade that there may be circumstances that should prevent the issue of an Australian passport or other travel document to the child. Such a request will remain valid for a maximum of 12 months, unless there is a Court Order requiring the alert to continue.
It may also be prudent to take steps to include your child on the Family Law Watchlist, which I talk about further below.
My Child Already Has A Passport (Or Other Equivalent Travel Documentation).
If your child already has a passport, then you will be in a slightly different situation, as once a passport is issued, depending on the Visa status of the countries proposed to be visited, then it may be possible for your child to leave the country without any notification to you and without getting any other travel documents except a plane or boat ticket.
If you consider that this is a likely or possible occurrence, it may be prudent to make an Application to the Family Court or Federal Circuit Court seeking a Court Order that your child not travel overseas (or only travel overseas upon certain things happening) and that your child’s name be included on the Family Law Watchlist, which is administered by the Australian Federal Police. This may also be prudent in circumstances where your child doesn’t have a passport, as an added layer of protection.
It is important that once the Application is made to the Family Court or Federal Circuit Court, that the Australian Federal Police is notified by the completion of a Family Law Watchlist Request Form.
Once any application for such parenting Orders is pending, then no one who is a party to the proceedings, or anyone acting on their behalf, is to take any child outside of Australia except as agreed in writing and it is a criminal offence to do so.
Having a child listed on the Family Law Watchlist will usually ensure that if they do try to leave the country they will be prevented from boarding any transport that is heading overseas.
Obviously, commencing a Court application is a significant step for any parent and not one to take lightly, however it is sometimes the only legally binding option to stop your child being taken overseas in these circumstances.
My Child Has Already Been Taken Overseas And I’m Worried They Won’t Come Back.
I would consider this to be the most worrying situation and it is one that thankfully comes up very rarely.
If you are in this situation where your children have been taken overseas and you are worried that they won’t come back, then you should immediately seek independent legal advice and also make enquiries with the Department of Child Safety, Youth and Women and the Commonwealth Attorney General’s Department.
In Australia the Australian Central Authority in the Attorney General’s Department administers the Hague Convention on the Civil Aspects of International Child Abduction, which is the international treaty that deals with the removal of children from one country to another.
The list of countries that are part of this international agreement can be found on the Commonwealth Attorney-General’s Department website.
If your child has been abducted or taken to a country that is not a signatory to the Hague Convention, you should immediately go to the police and then get legal advice as soon as possible both in Australia and in the country that you think your child is in, as you may need to make a Court application in that country to have your child returned to Australia.
There are also changes to the Family Law Act that are to come into effect in April next year (2019) that would make it a criminal offence to retain a child overseas, without consent, in contravention of a final parenting Order or where there are Court proceedings in process for a parenting Order.
In Conclusion & Handy Tips
It is a big deal for most parents when their children go overseas and understandably the added difficulties that come with separation make dealing with this issue even more difficult.
In short, the more you can communicate about the issue with your ex-partner or whoever is proposing to take the kids overseas the more likely you will be able to come up with a plan that satisfies all involved.
Try not to get into a situation where the kids know before one of the parents about a trip the other one is planning. It should really be a joint decision by the parents and one where neither parent is put in a position that they would be the Grinch who stole Christmas if they did not think it was best that the children went. This may seem pretty obvious but you would be amazed at how often it comes up.
It may be helpful to get a third party to help as it can often be a good way of facilitating a discussion. If you are going to go down this path, make sure it is someone who is trusted to be open and neutral.
While I hope the above is helpful, it is no substitute for independent legal advice specific to your circumstances and is only a general overview of what can be a very complicated area.
If you have any concerns about these issues, please get in touch with me (or another member of our fantastic team at Brisbane Family Law Centre) on (07) 3862 1955 or by email to [email protected].