Navigating parenting arrangements following a separation can often be a minefield. Any decisions made regarding children must be made with the consent of both parties, which includes travel. If you are looking to take your children overseas on a holiday following a separation, or you are concerned your former partner or spouse may take your child/ren overseas without your consent, there are strict requirements imposed by the family courts that can protect you and your child.

In this article, we look at how the Federal Circuit and Family Court of Australia approaches overseas travel with children following a separation and the steps you can take when one parent wants to take a child overseas without the other parties’ agreed consent.

Can I travel overseas with my child during Family Law proceedings?

Children are not permitted to travel overseas whilst parenting proceedings are active in the Family Court, without the express written consent of both parties. The unauthorised removal of a child from Australia, or the attempt to do so, carries a penalty of up to three years’ imprisonment.

You can, however, apply for a Court Order seeking permission to take the child overseas or provide Consent Orders to the Court whereby both parents agree for the child to leave the Commonwealth of Australia. Certain restrictions may also be added to the orders stating that the parties’ written consent is required, prior to any travel arrangements being made.

A full list of the information required in the Orders can be found on the FCFCOA’s website under ‘Children and international travel after a separation.’

What if I think the other party might take my child overseas without my consent?

If you are concerned that your former partner or spouse may take your child outside of Australia without your consent, it is important to take urgent action.

It is recommended to contact an experienced family lawyer who can assist with filing an urgent application to FCFCOA to place your child on the Australian Federal Police (AFP) Airport Watchlist. This means your child is restrained from leaving the Commonwealth of Australia and is placed onto a list until a further order is made and/or it is removed.

What if my former partner or spouse travels overseas and does not return my child?

The Hague Convention is an international agreement that provides a process for assistance if a child has been abducted by a parent and taken overseas. The Convention provides a legal framework through which a parent can seek to have their child returned to their home country. Australia is a signatory to the Convention, however not all countries are signatories.  An application for the return of a child pursuant to the Convention can only be made to or from a country that has signed the convention.

It is therefore important to read the signs and recognise any risks of the other parent leaving with your child to mitigate your issues of having your child returned to Australia.

Need to speak to an experienced family lawyer?

Our experienced Sydney Family Lawyers are here to assist in any parenting matters. If you’d like help navigating this area of law, contact the family lawyers at Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation or submit an online enquiry.  

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.

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