To Fly or Not to Fly – Overseas Travel with Children Post Separation

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Post separation, it can often be confusing navigating parenting orders/plans and what a parent can or can’t do with their children, especially when it comes to overseas holidays.

A commonly asked question is whether a parent can still take their children on an overseas holiday once they have separated from the other parent.

The answer to this question is often not straight forward and can require a parent to jump through several hoops before holiday preparations can even begin.

Can I apply for a passport for my children post separation

An application for a child’s passport is normally made to the Minister under the Australian Passports Act 2005 (Cth) and requires the consent of the other parent, except in limited circumstances.

The limited circumstances include, but are not limited to, when a parent has sole parental responsibility of a child and if a child’s physical or psychological welfare would be adversely affected if they were not to travel.

Although, even when a parent has sole parental responsibility of a child, they still require an order from the Court allowing that parent to obtain a passport for overseas travel.

When there are parenting orders/plans in place

When parents have agreed upon a parenting orders/plans, they will normally set out a procedure to follow in order to organise an overseas holiday.

This may include a notification period in which the parent intending travelling may need to advise the other parent in advance and also the itinerary of the trip including contact numbers for the holiday accommodation.

When there are no parenting orders/plans in place

When there are no parenting orders/plans in place and the other parent is refusing to consent to a passport being issued for a child, the parent intending the travel may need to start court proceedings in order for the child to obtain a passport. This involves attending dispute resolution in the first instance, but then filing with the court if the matter cannot be settled, which can be a lengthy and costly exercise.

Consequences of not following the parenting orders/plans in place

The Family Law Act 1975 (Cth) provides that if a parent takes a child outside of Australia without parenting orders/plans in place expressly stating they can do so or without written permission of both parents, that parent can be imprisoned for three years.

The same term of imprisonment applies to a parent who takes a child overseas with the permission of parenting orders/plans or written consent, but then retains the child overseas otherwise than in accordance with those parenting orders/plans or consent.

There are limited exceptions to the above scenarios, which include that the conduct is necessary to prevent family violence or that the conduct is reasonable in the circumstances as the person perceives them.

The above consequences also apply where there are parenting orders/plans still pending and yet to be finalised by the Court or parties.

Passports have been issued, but now the other parent is objecting to the holiday

We often hear from clients that they have followed the parenting orders/plans, have obtained passports for the children and put their holiday plan in action but now the other party is objecting to the children travelling.

Unless the other parent has a genuine concern that there is a flight risk, it would be unlikely that the other parent would be able to restrict travel, by simply changing their minds.

However, if a parent does hold a genuine concern that there would be an overseas flight risk, they may be able to put the children’s names on the Australian Federal Police Watch List.

If you have questions relating to overseas travel post separation or need help preparing parenting orders, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.

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