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Can I take my children overseas?

Tuesday 14th of June 2022
By: Rohan Kelly, Associate, Coote Family Lawyers

I trust you and what steps to take.  Thank you!

We have separated and I want to take my children overseas.  What do I need to know?

As COVID travel restrictions relax around the globe, families have turned their minds to planning international travel.  If you are considering international travel with your child, it is important that you are aware of the ramifications of leaving Australia, particularly in circumstances where the non-travelling parent is not aware of or has not agreed to the travel arrangements.

Without Court Orders, there is a presumption that parents have equal shared parental responsibility in respect of long-term decisions made on behalf of their child.  These decisions include health, education, religion and travel.  Accordingly, before embarking on your international holiday or relocation, there is an expectation under the presumption of equal shared parental responsibility that you will consult the non-travelling parent about your travel plans.

There are a variety of conditions that can be sought to guarantee the return of a child to Australia.  For example, parents can agree on a notice period, such as 6 weeks’ notice prior to departure.  It is also common to provide the non-travelling parent with a travel itinerary which includes the child’s return flights, travel destinations and accommodation arrangements.  If the child will lose time with the non-travelling parent as a result of the travel, it might also be appropriate for “make-up time” to the non-travelling parent upon the child’s return.

On some occasions, the non-travelling parent may request for a surety payment in the event the child does not return to Australia.  The quantum of this payment is generally the costs the non-travelling parent would incur in returning the child to Australia by court proceedings.  Parents should be aware that this condition is quite uncommon and is only sought in exceptional circumstances.

There can be serious consequences if you choose to travel with the child internationally without the consent of the non-travelling parent.  In the event you travel to a country that is signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the non-travelling parent can issue a court application to seek the assistance of the authorities of that country in returning the child to Australia.  Alternatively, the non-travelling parent can make an application for an Airport Watch List Order if they have not agreed to the child’s international travel to stop travel at the border.  Where there are already Court Orders regarding a child’s arrangements, the non-travelling parent may seek an urgent Recovery Order, which seeks the assistance of the Australian Federal Police to have the child returned to their care. 

International travel with a child that is not agreed can amount to international child abduction which can significantly impact the child.  Criminal consequences may also follow in certain circumstances.  It is therefore essential that you seek independent legal advice from a lawyer that specialises in family law prior to committing to international travel where there is no consent from the non-travelling parent.  We can assist you with organising your travel arrangements and we invite you to contact our specialist family law team on (03) 9804 0035.

 

 




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