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School holidays are supposed to be about making memories.
A week in Fiji. A family wedding in New Zealand. A long-awaited trip to visit grandparents overseas.
But when parents have separated, taking the children overseas can be a little more complicated than booking flights and packing the bags.
If you are separated and want to travel overseas with your children, there are some important things to consider before you book your flights.
And if you are worried that your former partner may take your children overseas without your agreement, there are steps you may be able to take to protect them.
The key is to understand your position early and, wherever possible, avoid leaving the issue until the last minute.
Can I take my children overseas without the other parent’s permission?
The answer depends on your circumstances.
One of the first things to consider is whether there are parenting orders already in place or whether parenting proceedings have commenced.
If there are existing orders or proceedings, the requirements around international travel may be different from those applying where there are no orders or proceedings.
Before booking flights, check your current parenting arrangements and obtain legal advice if you are unsure what they mean for your proposed travel.
If you and your former partner do not agree about the proposed trip, do not assume that because it is “just a holiday” you can simply go ahead.
International travel can raise important issues about the children’s arrangements, their relationship with both parents and, in some cases, the risk that they may not be returned to Australia.
The safest approach is to address the issue early and ensure you either have written consent from the other parent, or a court order permitting the children to travel as you propose.
If you want the other parent to agree, give them the information they need
If there is no agreement about overseas travel, the first step will often be to raise the proposal with the other parent.
Give them enough information to properly consider the trip, including-
- the destination;
- proposed departure and return dates;
- flight details;
- accommodation arrangements;
- who will be travelling with the children;
- where the children will stay;
- contact details for accommodation or relatives overseas;
- details of any family members the children will be visiting; and
- how the children will maintain contact with the other parent.
If you are travelling for a wedding, family event or to visit relatives, explain that as well.
The more information you provide, the easier it is for the other parent to understand the proposal and raise any genuine concerns.
How can you make an overseas travel proposal more comfortable for the other parent?
One of the biggest concerns for a parent staying in Australia can be losing contact with their children while they are overseas.
Consider proposing regular FaceTime, WhatsApp or telephone calls while you are away.
For example, rather than saying, “The children can call you whenever they want”, you could propose that the children video call the other parent each evening at an agreed time, subject to reasonable adjustments for activities and the time difference.
You might also agree to send photographs or updates about what the children have been doing.
Other safeguards may also be appropriate, depending on the circumstances. These could include providing a detailed itinerary, copies of return flight bookings, contact details for accommodation and relatives, or agreeing to particular travel dates.
The appropriate safeguards will depend on the circumstances of the particular family.
What if my former partner says no?
Sometimes the objection is genuine. The other parent may be worried about how long the children will be away, the destination, the proposed arrangements, the children’s safety or whether they will be returned to Australia.
In other cases, the disagreement may be part of a much broader conflict between separated parents.
Where it is safe and appropriate to do so, it is generally worth trying to resolve the issue without going to Court.
This might involve-
- discussing the proposal directly;
- exchanging written proposals;
- obtaining legal advice;
- attending family dispute resolution or mediation; or
- considering whether safeguards could address the other parent’s concerns.
The goal is not simply to “win” permission to travel. The goal is to find an arrangement that works for the children and gives both parents reasonable confidence about what will happen while they are away.
When might international travel become particularly complicated?
You should consider obtaining legal advice as early as possible if-
- there are existing parenting orders;
- parenting proceedings are already underway;
- your former partner strongly objects to the proposed travel;
- there have previously been disputes about international travel;
- one parent has threatened to relocate overseas;
- there are concerns that a child may not be returned to Australia;
- a parent or child has strong connections to another country;
- there are concerns about passports;
- there has been family violence or coercive behaviour; or
- there is a history of one parent failing to comply with parenting arrangements.
These circumstances do not necessarily mean that international travel will be prevented. They may simply mean that the situation requires more careful planning and legal advice.
What if we agree to the travel?
If you and your former partner agree that the children can travel overseas, make sure you both understand exactly what has been agreed.
Consider putting the arrangements in writing, including the destination, dates, flights, accommodation, who will travel with the children, how the children will communicate with the other parent and arrangements for their return.
Depending on your circumstances, you may also wish to formalise the agreement through appropriate legal documentation, including consent orders where appropriate.
If you want an agreement to become legally binding, consider filing an Application for Consent Orders in the Federal Circuit and Family Court of Australia to formalise this agreement.
If you are unsure what form your agreement should take, obtain legal advice before you travel.
What if mediation does not work?
Sometimes, despite genuine efforts to reach agreement, parents cannot resolve the issue.
In that situation, an application to the Federal Circuit and Family Court of Australia may be necessary.
The Court can make parenting orders dealing with international travel and, where appropriate, issues concerning children’s passports.
The Court’s focus is not simply on whether a parent deserves to go on holiday. The Court’s paramount consideration in making a parenting order is the best interests of the child.
The Court may need to consider the proposed travel arrangements, the children’s relationships and connections, the destination, the circumstances of each parent and any concerns about the children being returned to Australia.
What information might the Court need?
If you need to make an application about international travel, your application should clearly explain what you are asking the Court to do.
For example, you might be seeking an order permitting you to travel with the children to a particular country between particular dates and on specified flights.
Your supporting affidavit should provide the Court with the information it needs to understand the proposed travel and the circumstances of the children.
Depending on the circumstances, this may include-
- where you want to travel and why;
- proposed departure and return dates;
- flight and accommodation details;
- who will be travelling with the children;
- where the children will stay;
- the children’s relationship with people they will be visiting;
- the children’s connections to Australia;
- relevant information about the destination country;
- whether the destination country is a party to the Hague Convention;
- relevant travel warnings;
- how the children will maintain contact with the parent remaining in Australia; and
- arrangements for the children’s return.
If there is a concern that the children may not be returned to Australia, it is important to address that concern directly.
What if I am worried my children will be taken overseas?
The process works both ways.
If you are worried that your former partner may take your children overseas without your agreement, do not simply wait and see what happens.
In appropriate circumstances, the Court can make orders preventing a child from leaving Australia. The Australian Federal Police may also be able to place a child’s name on the Family Law Watchlist where the relevant requirements are met.
If you believe there is an immediate risk that your child may be taken overseas, seek urgent legal advice.
The Court has procedures for dealing with genuinely urgent matters, including circumstances where there is a risk that a child may be removed from Australia.
What if my holiday is only a few weeks away?
Do not wait until the week before you are due to fly.
You may need time to discuss the proposal, exchange information, obtain legal advice, attend family dispute resolution, negotiate safeguards or prepare an application to the Court if an agreement cannot be reached.
It is possible to ask the Court to deal with a parenting matter urgently in appropriate circumstances. However, an urgent application still needs to be properly prepared and supported.
The earlier you start, the more options you may have.
Final thoughts
Travelling overseas with children after separation does not have to become another battleground.
If you want to travel, give the other parent the information they need, think about how the children will stay connected with them while they are away and consider reasonable safeguards.
If you are worried that your former partner may take the children overseas, do not ignore the concern. There may be steps you can take to protect your children’s position and prevent unauthorised international travel.
Most importantly, do not leave the issue until the last minute.
Need advice about overseas travel with your children?
Planning to travel overseas with your children? Or concerned that your former partner may take your children overseas?
The earlier you obtain advice, the more options you may have.
At Brisbane Family Law Centre, we can help you understand your position, the steps you may need to take and the options available to you if you and your former partner cannot agree.
Book a free 15-minute call with one of our family lawyers to discuss your circumstances and understand your next steps.
