If your ex has asked to take your children to travel overseas with them, you may be worried or questioning "Should I let my children travel overseas with my ex?". On the one hand overseas travel can be an amazing opportunity for children to spend time with your former partner and learn about the world. However, it can be a scary and uncertain thing for the parent who isn't travelling with the children.
When considering a request from your ex to take your children travelling overseas, you obviously need to consider if it is safe for your children to travel. One of the biggest concerns people express is that the other parent will not return the children to Australia.
When weighing things up, you should consider the following:
- Is your former partner a citizen, or are your children citizens of another country?
- Does your former partner have family in another country that they are close with?
- Has your former partner ever lived overseas, or expressed a desire to move overseas with the children?
- Is your former partner proposing to travel with the children to a country that is not a signatory to the Hague Convention?
- Do you have current Family Law Orders in place?
What is the Hague Convention?
Formally called 'The Hague Convention of the Civil Aspects of Internal Child Abduction', the Hague Convention is an international treaty that provides avenues for child recovery when a person takes children overseas without permission or does not return to the home country as promised.
Countries that have agreed to be a part of the Convention are called 'signatories'.
Australia is a signatory to the Hague Convention, and so when children travel to other signatory countries, the Hague Convention applies. However, if children travel to other countries that are not signatories to the Hague Convention, then the treaty does not apply and the avenues it provides are not available if the children are not returned. For the full list of countries practicing the Hague Convention Click here
What are Family Law Orders?
Family Law Orders are orders that have been made under the Family Law Act. They provide orders about things like who children live with after separation takes place. Family Law Orders can also provide conditions of overseas travel.
If there are Family Law Orders in place, both parties are bound to comply with the orders. Failure to comply allows the other party to make an application to the court to enforce the orders under certain circumstances.
So, what can I do to make sure that my children travel safely with my ex?
- Have Family Law Orders in Place
These orders can be enforced and your ex could be ordered to return the children in the event that they do not return as had been agreed.
- Enter into an undertaking and get a security
An undertaking is a written promise that someone will do a certain thing – for example, return the children to Australia by a certain date. A security deposit or bond is money that is provided by a person that can be accessed by someone else in the event that they do not comply with a certain condition. We suggest to our clients who are concerned about their children travelling overseas that an undertaking is provided by the travelling parent that they will return the children to Australia by a certain date. We also suggest that the travelling parent places a large sum (usually about $10,000.00) with us, which is held in trust as a kind of security bond. If the travelling parent does not comply with the undertaking, the bond is to be used by the non travelling parent to fund any court proceedings or other action needed to ensure that the children are returned to Australia.
- Only allow your children to travel to countries that
are signatories to the Hague Convention.
This will ensure that you have international avenues to available to you to recover your children in the event that the travelling parent does not return the children to Australia.
- See a Lawyer about the best way forward for
A lawyer will be able to give you advice about what action to take, and will be able to help you negotiate with your ex to ensure that any travel that takes place is done in a safe way.
Holidays are a part of life, and overseas travel is a wonderful opportunity for your children to learn about the world. But, if you are unsure or uncomfortable with the thought of your children travelling and want to know more about your options, please contact us for an appointment.
The Coutts Solicitors Family Law team are experienced and knowledgeable in all areas of current Australian Family Laws. Several members of our team practice solely on Family Law Matters, meaning they have advised hundreds of people on Family Laws. Each of our team are excellent at negotiation and mediation outside of Court, as well as representing you in Court if you wish to proceed to this level. If you would like to know more about Family Law and how Coutts can help, please click here
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.