If you intend on travelling with a child who is subject to a court order or parenting arrangement the process of travelling overseas can be difficult.
The Family Law Act 1975 (Cth) provides that in order to travel overseas with your child you must have the other parents’ consent. In the event the other parent refuses consent you will have to apply to the court to seek an order that the child be permitted to travel internationally. In doing so the court will consider whether the travel proposed is in that child’s best interests. Note: It is a criminal offence to take a child that is subject to a court order outside of Australia without the consent of the other party to the order.
Recent cases indicate that the court is reluctant to allow a child to travel to any location where there is a reasonable threat to the child’s safety and/or health. The current involvement by Australia in military action overseas, particularly the specific threat to areas of western congregation has resulted in the Department of Foreign Affairs and Trade regularly updating the scale of caution for each country.
If you are intending on proposing to travel internationally with your children we recommend that you review the travel advice at www.smarttraveller.gov.au for your proposed destination.
For the parent remaining at home there is the additional factor of whether the proposed country of destination is a signatory to the Hague Convention.
The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process which allows the parent remaining at home can seek to have their child returned to their home country. There are currently 77 countries that are parties to the Hague convention including Australia, the United States of America, the United Kingdom and Canada.
In the event the child’s parent unilaterally removes the child from Australia to a country which is a party to the Hague Convention, the parent who has been left behind can make an application to the court in that country for return of the child to Australia. The court of the convention country is required by its regulations (if the convention criteria are met) to make an order for the return of the child to the child’s home country. It is on this basis that the court is more likely to grant permission for a party to travel internationally with a child to a country that is a party to the convention.
Should you be considering travelling with your children overseas, or should the children’s other parent be proposing the children travel overseas, we recommend you contact our office to make a complimentary appointment to consult with one of our highly experienced family law solicitors as to your rights.