Australia: When a wing and a prayer won't cut it – Travelling overseas with children

In this age of mass travel, it's pretty common for Australian families to travel overseas to attractive holiday destinations. Many Australians were also either born overseas, or have a parent who was, and will quite often want their children to experience the cultural background from which they, at least in part, derive.

Strictly speaking, if there are no Court Orders in place regarding children, you don't need the other parent's consent to travel overseas with your children. However, if your children don't have a current passport, then be prepared to talk, because the non-travelling parent needs to sign the passport application.

You can often negotiate an agreement in relation to your children's travel, either through private discussions or with the help of legal representatives. However, there are many cases where the non-travelling parent refuses to provide their consent or to sign the passport application - sometimes because of genuine concerns about the child's safety when traveling overseas and sometimes for no good reason at all.

If the non-travelling parent won't put pen to paper and sign the passport, you'll need to file an application with the Family Court either seeking that their signature not be required or an Order directing them to sign.

The Court's most important consideration is what is in your children's best interests. Factors the Court will explore when deciding if your proposed travel fits the bill include:

  • The length of your stay outside the jurisdiction
  • the bona fides of the application
  • the effects on your children not being able to spend time with the parent in Australia
  • any threats to the children's welfare in the proposed overseas environment
  • how satisfied the Court is that your promise to return to Australia will be honoured.

Basically, the Court has to decide if there is any risk that you won't return your children to Australia, in spite of undertakings to the contrary. Obviously, such a possibility can have serious ramifications for children including the end of their relationship with part of their family.

In Line & Line the Full Court of the Family Court indicated the range of circumstances which are taken into account when assessing the degree of risk that a travelling parent won't return a child to Australia, including:

  • The existence (or otherwise) of continuing ties between the departing parent and Australia, such as owning property, business interests, or family/close friends in the country
  • the existence and strength of possible motives not to return, including the level of conflict between the parties concerned, particularly over child-related issues
  • the existence and strength of possible motives to remain in the country of proposed travel, again including such things as property ownership, business interests, and the existence of family and other personal ties.

If you can show the Court that your travel and holiday plans are genuine (you'll need to provide copies of return airline tickets and itinerary), that you have ties to Australia, and that you have every intention of not disappearing overseas with your children, you'll probably be successful in getting an Order for the passport, as well as an Order allowing you to take your children overseas.

Your travel plans won't get off the ground if the Court believes that you may not return your children to Australia, or you want to travel to an unsafe country where significant travel warnings by the Australian Government are in place.

In some circumstances, the Court must consider if it's appropriate to impose conditions or securities to make sure your children come back to Australia. The following factors are explored:

  • In fixing the sum of money as security, whether the sum will realistically entice the person travelling with the children to return to Australia and also adequately provision the parent remaining in Australia to take action for the return of the children, if necessary
  • the degree of risk that the departing parent will not return to Australia
  • whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country
  • the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.

The form the security or bond may take varies from case to case. Sometimes the travelling parent has to pay a monetary bond to be held in trust by the non-travelling parent's solicitors or an agreed third party. In other cases, the bond may be the travelling parent signing over the registration to their car or providing some such other asset as security.

Should you fail to return your children to Australia in accordance with the return airfare/itinerary, the security or bond may be released to the non-travelling parent so they can use the funds towards recovering the children into their care and bringing them back to Australia.

Where Court Orders are in place for children, the Family Law Act states that if you wish to travel overseas with your children, you must first obtain the other party's consent to do so.

To avoid the issue of overseas travel becoming a dispute, when entering into Consent Orders regarding your children's arrangements, include provisions for both parties to travel overseas with your children under various conditions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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