Overseas Travel with Children Following Separation

05-12-2023    |    Resource   |   Simone Thomas

As we approach the Christmas holiday season, many families will be trying to coordinate travel plans and agree on where the children will spend their time over the festive period.  For families with separated parents, this time of the year can be tricky to navigate.  If one parent plans to travel overseas with the children for example, it can lead to disputes over travel plans and safety fears.  Recent media stories concerning child abduction, health concerns and political unrest in many countries can only add fuel to the fire!

Travelling overseas with children can become a significant area of dispute between separated parents and recent media stories concerning child abduction, health concerns and political unrest in many countries only add fuel to the fire!

For separated parents with no Parenting Court Orders in place, while you are not strictly required to obtain the other parent's consent before travelling overseas with the children it is prudent to keep your ex-partner informed as to your plans to take the children overseas.

In the event that your child does not have a current passport, you will require the other parent's consent to have a passport issued for the child. Most parents will sign such passport applications if they are given appropriate notice and sufficient details of the proposed overseas travel for the child. Unfortunately, there are some parents that will not consent to a passport being issued for a child for no apparent reason. In the event that your ex-partner does not consent to the child being issued with a passport, you can file an Application with the Federal Circuit Court seeking Court Orders that the other parent sign the passport application.

In determining such an Application, the Court will consider your ties to Australia, that the Country you propose the children to travel to is a safe country and not subject to significant travel warnings and that you have every intention of returning to Australia with the child following the conclusion of your proposed overseas trip. 

What happens if I have existing Court Orders?

Most people when negotiating Parenting Court Orders concerning children include detailed provisions concerning both parents ability to travel overseas with the children and the issuing of passports.

If there are existing Parenting Court Orders in place concerning the children but no orders specifically in relation to overseas travel, then Section 65Y of the Family Law Act states that the parent intending to travel must still first obtain the written consent of the other parent or guardian prior to removing a child overseas. 

If you are planning a trip overseas and have Parenting Court Orders in place, you should seek the other parent's written permission to travel overseas with the child prior to you making plans and paying for your travel expenses.

If no consent is forthcoming from your ex-partner, you should seek legal advice without delay as an Application may need to be filed with the Federal Circuit Court seeking permission for the children to travel overseas and be issued with passports. This process may take a number of months. 

What If I Want to Prevent the Children Travelling Overseas?

If you have concerns that your ex-partner may be intending to travel overseas without your consent and/or abscond with the children overseas permanently, we recommend that you seek urgent legal advice. 

For more advice on travel arrangements for children following separation or to discuss the most suitable option in your case, contact one of our experienced family lawyers on tel: 02 4731 5688.


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