While making plans to travel overseas with your children, you should know that doing so without appropriate consent or authorisation could lead to legal issues. Parents who have parenting orders or have filed to get orders from the court should know that taking a child who is the subject of an order out of the country without express permission or proper legal authorisation could become a criminal offence and could lead to imprisonment.
While it may not be a problem to travel with your children within the country, leaving the country with a child who is the subject of a parenting order can lead to serious problems. For many, a child travelling overseas with his other parent may not be a cause for concern but for others, it is a serious source of worry.
For parents who worry that their children could be abducted or taken overseas, there are measures they can take to prevent that from happening. When making plans for a holiday with your children without their other parent, it is necessary to seek legal advice. It is very important for both parents to reach an agreement before such travel. If a parent’s permission is not obtained before the travel, they could apply to the court to stop the trip, or for the child to be brought back home.
HOW TO PROCEED:
Applying for court permission to travel is a process. To make things easy, the party concerned should take some necessary steps.
- Early planning: It is wise to allow plenty of time. Inform the other party early enough and get consent early enough.
- Provide details of the trip: Be clear about where you are taking the child, how long you’ll be staying and so on. Important details like; means of communication between the child and the other parent shouldn’t be left out.
According to section 65Y of the Family Law Act, a person must not take or send a child being the subject of a parenting order outside Australia unless by consent of all parties to the parenting order or by order of the court. To do so risks imprisonment. The Act allows children who are the subject of parenting orders to travel overseas with their other parent only when there is a written express permission from both parties or when a court order allowing overseas travel has been made.
APPLYING FOR A COURT ORDER:
It is important for you to get proper legal assistance. You can contact the AJB Stevens lawyers for legal advice and assistance in preparing documents showing the agreement between the parties involved or court applications for permission to travel with children who are subject of a parenting order.
The application for permission to travel with a child who is the subject of a parenting order should be filed with the Court. If you have a current parenting case in the family court, then the application should be filed to that court.
The application form must contain what orders you are asking the court to make. You must support the application with an affidavit stating the points that are important to your case which usually include;
- The details and the reason for the travel;
- The immigration status of those travelling;
- The links of those travelling with Australia;
- If the country being visited is a member of the Hague convention;
- If any travel warnings have been issued for the intended destinations;
- Any other facts relevant to the case.
The affidavit differs with the type of application and the circumstances of each case. While travelling, ensure to move with the written permission or the court order permitting you to travel with the child.
Children cannot travel on their parent’s passport. A passport must be issued to each child travelling overseas. For this passport to be issued, a written consent must be signed by those who have parental responsibilities over the child.
In a situation where they do not provide signed consent, you can write to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport based on ‘special circumstances’. If this fails, then you can apply for a court order that allows the child to travel with you overseas.
PREVENTING YOUR CHILD FROM TRAVELLING OVERSEAS:
For some reasons, you may be concerned that your child may leave the country without your permission. You can prevent your child from leaving the country by applying for a court order that can ensure any of the following:-
- To prevent a passport from being issued to your child: You can lodge a Child Alert Request at any Australian passport office. This would prevent any person from getting a passport issued to your child without proper legal consent. You would be notified immediately when an application for the passport is filed. This request is valid for 12 months.
- You could also apply for a court order preventing a passport from being issued to the child without proper legal consent. This child alert stays active till the child is 18 years old.
- To prevent your child from leaving the country: You could apply for a court order that requires the Australian Federal Police (AFP) to place the child on the Airport Watch List. The order also would restrain the removal of the child from Australia and would enlist the help of the AFP in implementing the order. On receiving the court order, the AFP can place the child’s name on the list and the AFP cannot remove the child’s name unless by court order.
- Delivery of the child’s passport or the involved adult’s passport to the court to prevent leaving the country for a period of time.
A child alert request does not affect passports issued by other countries.
If a child is taken from Australia to another country without express permission from the other parent, The Hague convention on the Civil Aspects of International Child Abduction may apply, so the court can request the return of the child to his or her habitual residence. This applies only when the two countries involved are signatories to this Hague Convention.
A temporary or permanent parenting order should take into consideration the travelling of children overseas with any of the parents and make provisions about what should be done in such a situation. Therefore it is necessary to seek proper Family Law advice while drafting orders.
You can contact the AJB Stevens family lawyers for advice and legal assistance in any parental cases. We ensure that your questions are answered and that you are provided with sound assistance and proper representation.