Travelling with children usually requires more planning, from packing extra supplies to locating child-friendly facilities.
It becomes more complicated after a separation, especially if you’re planning to take the kids on an overseas trip.
Here’s what you need to know about travelling with kids post-separation.
Interstate travel with kids
Traveling to another state when the children are to be in your care, whether under an informal parenting arrangement or an Order or Parenting Plan, is usually uncontroversial.
If it will not affect the time the children spend with your co-parent, there is no problem, although many parents still operate on a framework of mutual courtesy, letting the other know.
If that travel will cut into the time the children are to spend with their other parent, it could be as simple as requesting permission from your co-parent, who happily agrees
…But suppose your travel dates are over the Christmas holidays when the kids are meant to be with the other parent?
They may not be agreeable.
If an order is in place that stipulates you may not travel at all without permission from the other parent, taking the kids out of state without that consent will be a breach of that order, and consequences can flow from that.
Family Dispute Resolution (FDR)
If there is no order in place, but your co-parent opposes the proposed travel, you can trigger Family Dispute Resolution – a targeted mediation between parents to ventilate the issue and identify whether a compromise exists.
Family Court
If no agreement can be reached, then the only remaining option to regulate the issue (for the subject trip, and future trips) is to seek formal orders about it from the Court.
The lesson? Discuss your plans with your co-parent well in advance. This allows time to rearrange parenting schedules in a way that suits both parents.
If you cannot arrange the trip to fall during the time the children spend with you, that gives you time to trigger the FDR process or seek formal orders covering the proposed travel.
International travel
Getting your co-parent to agree to take the kids out of the country could be much more difficult.
They may worry about potential dangers present in the destination country like:
- pandemic risks;
- political unrest;
- terrorism risk;
- fear that you may permanently remove the child from Australia.
A word of caution in this situation: if there are parenting proceedings underway in Court, or if there is a parenting order in place, it is illegal to remove a child from the Commonwealth of Australia without either your co-parent’s consent (which is best to have recorded in writing) or an order of the Court.
Court Approval
If the co-parent refuses permission, you will need to get approval from the Federal Circuit and Family Court of Australia to leave Australia with the child.
In bringing on this Application, you will need to put on clear evidence as to the travel arrangements, the itinerary, the safety of the children, and the arrangements as to (and evidence of) their return, so that the Court can conclude that it is in the best interests of the travel.
If your child/ren does not have a Passport, you may also need to seek orders as to the issue of this document, including the logistics if your co-parent refuses to sign the Application documents.
Check The Entry Requirements of Foreign Countries
Another word of caution – remember to check the entry requirements of the country you are visiting.
Some countries require more than just a visa when children travel with only one parent. They may also require the following evidentiary documentation:
- A letter from the absent parent or the court (in the form of a notarised copy of an Order) granting permission for the child to travel.
- A copy of any written agreement Order of the Court divorce or custody decree that proves you are permitted to take the child out of the country.
- A certified copy of the child’s birth certificate or adoption papers.
What if you don’t want your co-parent taking the kids on an overseas trip?
If you are the parent opposed to the child leaving the country, you can deny your consent (and refuse to co-sign a passport or visa application, pending a Court dealing with that subject).
If the co-parent goes against your wishes and attempts to or succeeds at taking the child out of Australia, there are a few things you can do:
Before The Trip
Prior to the child being taken from Australia, you can apply to the court for orders prohibiting that travel, and to have the child put on the Family Law Watchlist, to prevent their passage through points of departure from the Commonwealth of Australia.
Should your child’s passport then be used at any exit point, the Australian Federal Police will intervene.
During The Trip
If your child is taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, you can contact the Australian Central Authority on 1800 100 480 to apply for the child to be returned.
If your child is taken to a country that is not a member of the Hague Convention, you will need to contact the Department of Foreign Affairs and Trade, and a private family lawyer for advice (which may necessitate the commencement of proceedings in the foreign country).
Importance of Parenting Orders & Parenting Plans
You can avoid many parenting disputes over issues like trips away with the kids by establishing some rules around it when negotiating Parenting Orders and Parenting Plans after separation.
While overseas travel may not be on the agenda at that time, it may be relevant down the track, and you will thank yourself for having clear and binding ground rules to cover that subject if and when it arises in the future.
Our Family Lawyers Can Help
BGM Family Lawyers is a family law firm on the Gold Coast.
For family law advice and help drafting a parenting agreement, call us at 1300 BGM LAW, email in******@bg*.legal or fill in this form.
