Travelling overseas with your children after separation

People say the world is getting smaller.  It’s easier and easier every day to drop everything for a winter escape to somewhere warm and of course everyone wants to spend important festivals like Christmas and Ramadan with their family.  But what happens if you’re separated from the other parent?  Is international travel even possible?

If you already have court orders about your children (and those orders do not specifically allow you to take the children outside of Australia) it is a criminal offence under the Family Law Act to take the children out of Australia unless the other parent provides a written agreement to the travel in a statutory declaration, or you go to court and the court permits you to travel.  The same applies if you have an ongoing case in the Family Court which is not finished yet.  The maximum penalty is 3 years gaol.

If you do not have court orders or an ongoing matter before the court, you should still get your former partner’s agreement to the travel.  In serious cases, if you start making arrangements to travel and you have not told your former partner and they find out about it, they might be able to get a court order which prevents you from travelling outside of Australia with the children.  You might not find out about this until you are at the airport.  The Family Court even has the power to stop aeroplanes in Australian airspace, and every year several planes are grounded before leaving Australia because people are leaving the country unlawfully with their children and the departing parent is taken into custody by federal police officers from the plane once it is on the ground.

If, after talking to the other parent they agree to your travel, get it in writing in a Statutory Declaration, or apply for a consent order.

If they do not agree, you will need to go to court.  With that in mind, remember that court timeframes can be extremely tight so give the other parent plenty of notice about your upcoming trip, particularly if you also need agreement to get a passport for your child.  Going to court is the last resort and a judge in the Family Court might not want to hear your case if you have not already given your former spouse a reasonable opportunity to agree to the travel, apply for passports, and to negotiate contact arrangements during your absence from Australia.

If you do reach an agreement with the other parent, or have a court order which permits you to travel, stick to the agreed arrangements.  Deliberately overholding children overseas is extremely serious and the law about it is very complex.  The foreign law of the country you are travelling to is very likely to apply to your situation and depending on what country you are in, that law could be very different from how the law about parenting disputes works in Australia.  Also, Australian family law courts take a very dim view of parents who unlawfully take children overseas (or keep them there), so if it is proven that you have deliberately contravened an agreement or court order by overholding the children overseas, or taking them out of Australia, then that may affect your parenting arrangements when you return home.

Remember that the Australian courts will always put the children’s best interests first, so there is a big difference between travelling to a Pacific Island resort, or to Europe for Christmas with family, or to North America to visit elderly relatives for the first time, as against travelling to a known warzone or to a country or region that the Australian government recommends not going to.  Also, there are several International agreements between Australia and differing countries which cover issues around abducting children or overholding them in foreign countries and a court will look more favourably upon a proposed holiday in a country Australia has an agreement with than a trip to a country where there is no international legal framework for the return of the children if something goes wrong.

Please contact our accredited family law specialist Gordon Ainger.

Please email gordon@emlawyers.com.au if you want to discuss international travel with children or any other family law issue.