WE’RE ALL GOING ON A HOLIDAY! AREN’T WE?

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.

Where there are no Court Orders in place

Strictly speaking, if there are no Court Orders in place regarding children, the travelling parent does not need the non-travelling parent’s consent to travel overseas with your children. However, if your children don’t have a current passport, then the non-travelling parent’s consent will be required to obtain a passport for the children.

If the non-travelling parent refuses to sign the passport application, the travelling parent will need to file an application with the Family Court seeking an Order directing the non-travelling parent to sign the passport application; or an Order that their signature not be required for the passport to issue.

The Court’s paramount consideration when determining an application by a parent to travel with a child remains the child’s best interests. However, the Court will also have regard to other factors, including:

  • The length of the proposed stay outside Australia;
  • the bona fides of the application (usually demonstrated by the production of return airfare tickets and travel itinerary);
  • the effects on the children not being able to spend time with the parent in Australia;
  • any threats to the children’s welfare in the proposed overseas environment (including travel warning from the Australian Government that are in place); and
  • how satisfied the Court is that a promise to return to Australia will be honoured (usually related to the level of the travelling parent’s ties to Australia such as employment and ownership of property and assets).

Essentially, the Court has to decide if there is any risk the travelling parent won’t return the children to Australia, in spite of undertakings to the contrary.

When assessing the degree of risk that a travelling parent won’t return a child to Australia, the Court will consider 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.
  • Whether the proposed destination is a member of the Hague Convention on the Rights of a Child.

Typically, if the travelling parent can satisfy the Court that their travel plans and intention to return to Australia are genuine, their application to travel, or to have a passport issued for the children, will be successful

In some circumstances, the Court may Order the traveling parent pay a bond or security. This usually takes the form of 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 the travelling parent fail to return the children to Australia in accordance with the return airfare/itinerary or Orders, 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.

When determining whether a bond is necessary or appropriate 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.

Where there are Court Orders in place

It is a criminal offence for a parent (or a person acting on behalf of, or at the request of a parent) to remove a child from Australia, without a Court Order or consent of the other parent if there are parenting Orders in place or Family Law proceedings on foot.

In many instances final parenting Orders will make provision for parents to travel internationally with their children. Typically, in these circumstances, it will be a requirement of the travel for the travelling parent to provide notice to the non-travelling parent of the proposed travel, together with details of the children’s airfares and itinerary. Even if this information is not required this information should be supplied to the non-travelling parent as a matter of courtesy. This will serve to assist co-parenting relationships and alleviate any concerns the non-travelling parent may hold.

Practical considerations for travelling after separation

If you are considering travelling with children after separation, you should keep these tips in mind:

  1. Give the non-travelling parent plenty of notice. This will ensure that if there are difficulties in obtaining the non-travelling parent’s consent there is enough time to make an application to the Court.
  2. Do not commit to any bookings until you have written consent from the other parent. Again, if the non-travelling parent’s consent or a Court Order cannot be obtained in time, the travelling parent risks financial loses (and disappointing the children if they have been told about the proposed holiday).
  3. Try and plan holidays when the children are in your care. This may limit the non-travelling parent’s ability to object to the proposed travel.
  4. Be flexible with time. If you are seeking to spend additional time with the children to enable the holiday to occur, give consideration to offering the non-travelling parent additional time when you return with the children or during the next holiday period.
  5. If you do have an agreement, make sure it is in writing. It is also recommended that the travelling parent travel with a certified copy of the Orders or Agreement permitting the children’s travel.

When you don’t agree to a child travelling overseas

Measures to prevent overseas travel or to prevent the issue of an Australian passport can be made via an urgent application to the Court and can include any of the following:

  1. Requiring your child’s passport to be surrendered to the Court or an agreed person;
  2. Prevent your child from being issued with a passport; and/ or
  3. Placing your children on the Australian Federal Police Airport Watch list.
  4. If you want to travel overseas with your child or want to prevent your child from travelling overseas, you should seek advice from one of our specialists at McLachlan Thorpe Partners prior to making any arrangements for travel.

If you have any concerns your child is about to be abducted overseas, act with urgency! Please contact:

Vicki Kelly, Accredited Family Law Specialist, vkelly@mtpartners.com.au

Emma Shuttleworth, eshuttleworth@mtpartners.com.au

Renee Smith, Accredited Family Law Specialist,rsmith@mtpartners.com.au

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