With Australia’s borders to the rest of the world back open and quarantine restrictions eased, many are once more looking to head overseas to catch-up on scheduled trips they missed out on or to release two years of cooped-up wanderlust.
For separated parents however, travelling overseas with children can be a thorny issue made pricklier by uncertainty and mistrust. Here are answers to the top 10 frequently asked questions to help you better understand the key things worth thinking about before you plan your next overseas trip.
Q: I want to take my children overseas for a holiday. Where do I start?
A: Ideally, a discussion with their other parent.
Preferably, both parents should agree to and be aware of any proposed travel. The parent proposing the international travel should provide:
- A reasonable amount of notice;
- Proposed travel dates, locations, travel itinerary and plane ticket details; and
- Details of how the other parent can keep in contact with the children throughout the journey.
Parents have an obligation to try to resolve parenting disputes, including travel disputes, without going to Court (if it safe to do so).
Q: I want to take my children overseas, but the other parent won’t consent. What can I do?
A: If you and the other parent have parenting proceedings in progress, neither parent should remove children from Australia without the other parent’s written consent or a Court order. If the other parent will not consent, you need to apply to the Court for orders.
The Court will consider a wide range of factors when deciding whether to grant an application for international travel. These include:
- The reason for travel and the proposed length of stay;
- The current living arrangements for the children, and their circumstances;
- Whether the travel is to a country which is a signatory to the Hague Convention;
- Have any travel warnings been issued with respect to the country the children will be travelling to; and
- The likelihood that the travelling parent will bring the children back to Australia.
The Court may impose restrictions or requirements on travelling parents, including that they pay a “bond” to the other parent to help secure the children’s return.
If there are no parenting proceedings ongoing, there is no law against children being removed from Australia. However it is important to bear in mind that parents have an obligation to do what is in their children’s best interests, including (in most cases) co-parenting with the other parent. Taking children overseas without telling the other parent can reflect poorly on your willingness and ability to co-parent.
Q: Do I need the other parent’s consent to get my children an Australian passport?
A: Yes. Passport applications usually require the consent of all parties with parental responsibility. Both parents have parental responsibility by default unless a Court orders otherwise.
If the other parent doesn’t consent to a passport application being made, you will need to either apply to the Department of Foreign Affairs and Trade citing “special circumstances”, or make an application to the Court for orders.
Children’s Australian passport can be renewed without both parent’s consent by the parent holding the physical passport.
Q: I want to take my children overseas. Can I make the other parent pay for the cost?
A: No. A separated parent has no obligation to fund the other parent’s or the children’s travel. However it is entirely possible to reach an informal agreement about this.
Q: My ex took/is taking the children overseas. What’s my entitlement to make-up time?
A: There is no legal requirement that a non-travelling parent get “make-up time” with their children.
All arrangements for children should first and foremost be in those children’s best interests, and the need for children to spend a certain amount of time with a parent should be balanced against the need, especially in younger children, for stability and routine.
Q: What do I have to consider when travelling internationally regarding COVID-19?
A: The situation with COVID-19 is ever-changing both here and abroad. Travelling parents should keep updated about COVID-19 travel restrictions, have appropriate health insurance which covers COVID-19-related hospital stays, stay informed about testing or quarantine obligations, ensure they and their children are vaccinated and comply with health guidelines.
The Court may restrict children from travelling to countries with substandard health care systems or where the risk of COVID-19 infection (to parent or children) is particularly high.
Q: Do I need permission to go overseas without my children?
A: No. In most cases adults can travel where they like (barring other unrelated restrictions).
Q: I’m worried my children are going to be taken overseas without my knowledge or consent. What do I do?
A: A parent can make an Application in the Federal Circuit and Family Court, seeking Orders for children to be placed on the Family Law Airport Watch List by the Australian Federal Police. Once children are on the Airport Watch List they will be prevented by border security from leaving Australia.
Q: What is the Hague Convention?
A: The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement. Countries who have signed the Hague Convention have agreed to work together to return children who are wrongly removed from their home countries. Australia and many other countries are signatories to the Hague Convention, however there are also many major countries which are not. Regardless of whether children have been abducted to a Hague Convention country or not, international proceedings to have children returned to Australia are complex, expensive and difficult.
Q: Does any of this apply to travel within Australia?
A: In the absence of Court orders there are no restrictions on parents travelling with their children within Australia. Parents should, of course, consider whether travel is in their children’s best interests, and comply with any existing Court orders, which might include restrictions on domestic travel, and let the other parent know if the intended holiday arrangements.
How we can help
If you or someone you know is going through a separation and would like advice on this issue, please contact Amanda Doring or Ben Keyworth from our Family Law team on (02) 8987 0000.
If you would like to keep up to date with Alerts, Insights and upcoming events, you can subscribe to our mailing list here.