It is not uncommon for parents to want to take their children on holidays overseas. Obviously, such holidays provide an opportunity for a child to be exposed to a different culture and a different way of life but most importantly, an opportunity to spend quality time together and have fun!
Can I take my child on a holiday overseas after separation?
During a relationship, arranging overseas travel is generally an exciting and uncomplicated issue. However, when parents have separated it can become extremely complicated and stressful.
After separation, a parent must obtain written consent from the other party to travel overseas with a child. Such consent is not always provided causing a dispute between the parents. To try and resolve the dispute, the parents can participate in family dispute resolution, such as mediation. Otherwise, the parent proposing to travel overseas has to make an application to the Federal Circuit and Family Court of Australia seeking that the Court make an order to permit the overseas travel.
The Court will consider whether it is in the best interests of the child to travel overseas as well as the reason for the travel and the risk of the child not returning to Australia.
In summary, a parent is only able to travel overseas with a child if the other parent consents to the travel or if there is a Court order permitting the travel.
How can I take my child overseas for a holiday when the other parent refuses to consent?
If you wish to take your child on an overseas holiday but the other parent refuses to consent, then you need to obtain an order from the Court.
If there are no proceedings on foot, you will need to start proceedings by filing an Initiating Application, Affidavit, Notice of Child Abuse, Family Violence or Risk and Genuine Steps Certificate.
If proceedings are already on foot, then you will need to file an Application in a Proceeding and an Affidavit in support.
Your Affidavit is extremely important. It is a statement of facts and you should include all the points that are relevant in your case. For example:
- The details and purpose of your proposed travel, including a copy of the itinerary (if you have one);
- The benefits to the child of the proposed travel;
- The history of the relationship and the current arrangements in place for the child;
- What links you have to Australia eg property, job etc
- Whether the country being visited is a member of the Hague Convention or if any travel warnings have been issued;
- What attempts you have made to obtain the other parent’s consent and resolve the matter without seeking Court intervention;
- Whether you are willing to provide an undertaking to the Court to pay any damages which the Court may decide another party has suffered as a result of the order requested.
Can I prevent my child from being taken overseas?
Yes. A common concern after separation is that one parent will abduct a child and take them overseas with no intention to return to Australia. If you are concerned that a child may leave Australia without your permission, you should seek legal advice as soon as possible. An urgent application can be made in the Federal Circuit and Family Court of Australia to prevent or restrict a parent from taking a child overseas including placing the child on the Family Law Watchlist as well as seeking Orders relating to where the child’s passports are held.
You can apply to the Court for an order that:
- Prevents a passport being issued for a child;
- Requires a person to deliver a child’s or accompanying adult’s passport to the Court; or
- Prevents a child from leaving Australia.
Preventing a child’s passport being issued
If you want to prevent an Australian passport being issued for a child you can:
- Lodge a Child Alert Request at any Australian Passport Office;
- Apply to the Court for a child alert order.
A Child Alert Request warns the Department of Foreign Affairs and Trade that a person may apply for an Australian passport for a child without proper and legal consent. If a child alert is in force and an application for an Australian passport is received for a child, you will be notified by the Department of Foreign Affairs and Trade.
A child alert request made at an Australian Passport Office is valid for 12 months. A court ordered child alert stays in force until a child turns 18, or as directed by the Court.
Delivery of a passport to the Court
If there is a possibility or threat that a child may be removed from Australia on a current passport, you can apply to the Court for orders. The Court may order the delivery of a child’s or accompanying adult’s passport to the Court. If ordered, the person in possession of the child’s passport must deliver it to the Court. The Court will keep it for the specific amount of time detailed in the court order or until further order of the Court.
Preventing a child from leaving Australia
If there is a possibility or threat that a child may be removed from Australia, the Court can make orders which:
- Restrain the removal of the child from Australia;
- Request that the Australian Federal Police (“AFP”) place the child’s name on the Family Law Watch List; and
- Request that the AFP assist in the implementation of the order/s.
The AFP will need a copy of the application or court order before placing a child’s name on the list. The child’s name will stay on the Family Law Watch List until further order of the Court.
What is the Family Law Watchlist?
The Family Law Watchlist is a system with the purpose of preventing children from being unlawfully removed from Australia. It functions at all international sea ports and airports in Australia and is operated and maintained by the AFP.
The Family Law Watchlist flags the movement of children and identifies whether children are leaving Australia.
There are particular steps that need to be taken for a child to be placed on the Family Law Watchlist.
How do I place my child on the Family Law Watchlist?
To place your child on the Family Law Watchlist, you need to have:
- The relevant order made by the court; or
- Filed an application with the court; or
- Filed an appeal with the court.
The next step is to complete the Family Law Watchlist Request Form and then email the completed form and the court documents to the AFP.
If the order has been made by the court, usually the order is sent directly to the AFP by the court which means that the Family Law Watchlist Request Form does not have to be completed.
How do I know if my child has been placed on the Family Law Watchlist?
If you are unsure as to whether your child has been placed on the Family Law Watchlist, you or your lawyer can complete a Family Law Watchlist Enquiry Form.
There are particular documents that you need to send to the AFP by email along with the form.
The AFP will respond to the enquiry by email within approximately ten days.
What is the role of the AFP?
It is important to remember that the AFP cannot enforce parenting orders or provide legal advice. Generally, the role of the AFP in family law matters is to act on particular types of court orders and stop the unilateral removal of children from Australia.
Help! I think my child is at risk of being taken overseas without my consent. What should I do?
If you are concerned that your child is at risk of being taken overseas without your consent, you should urgently obtain legal advice.
In circumstances where there is a real risk of a child being removed from Australia before the next working day, a lawyer can contact the Court using the urgent afterhours service which is for emergencies.
When Should I Get Legal Advice?
If you wish to travel overseas with your child or if you have concerns about your child being removed from Australia and taken overseas without your consent and would like your child placed on the Family Law Watchlist, then you need to urgently obtain advice from a family law specialist. The team at FGD have extensive experience in this area. Contact us for advice and help.
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Article By: Felicity Francis
Family Lawyer
Felicity is a passionate family lawyer who has spent most of her career in private practice, while also volunteering at the Women’s Legal Service Victoria for many years. She is experienced in complex property matters involving businesses, companies, self-managed super funds and trusts as well as high conflict parenting matters. Felicity was born and bred in a small country town near Echuca/Moama. She loves the big city life in Melbourne but also enjoys escaping back to the country for a change of pace.