Can I travel overseas with the kids? What you need to know in Family Law and International Travel

Thinking of escaping the daily grind with the kids and jetting off to a tropical island for a relaxing holiday? Before you make any non-refundable bookings, make sure you read this article first! 

If there are current proceedings in the Family Law Courts in relation to your children, or there are parenting orders in place regarding your children, but those orders do not specifically permit overseas travel, then you better give your airline a call and give up your seats on that plane! Parents are not permitted to take children overseas if there are not orders in place permitting this and if they have not obtained the written consent of the other parent. The Family Law Act 1975 even sets out that if a parent does remove a child from the jurisdiction of Australia, it is a criminal offence, and they can be imprisoned for up to 3 years. This penalty can also extend to people who act on behalf of the parent who removes or abducts the child overseas. So just because grandma, and not mum/dad, took the child on the flight does not mean she is exempt from punishment.  There are some very limited exceptions to this rule.

In considering the above, parents should think about what, if any, orders they want to put in place to allow for international travel with the children. Parents also need to consider what limits they want to have in place on any orders for international travel, such as the requirement for the consent of the other parent, the requirement for prior notice of travel plans and the provision of specific information regarding the proposed travel.

But what if there are no orders in place and there are no current court proceedings? Can parents go overseas without the consent of the other parent in that case? Lack of consent to travel in this situation does not trigger a breach of the Family Law Act 1975 as described above. So in those circumstances, parents can take their children out of Australia. This means that if a parent has a concern the other parent may travel internationally with the children without their consent, then they should seek urgent legal advice. There are a variety of court orders available to prevent the children leaving the jurisdiction of Australia, and these include:

1. An order preventing the issuing of a passport (if one has not yet been issued);
2. An order requiring the delivery of a passport to the court (being that of the children or accompanying adult); and
3. An order preventing the children leaving Australia (including a restraint on international travel, and placing the children on the Australian Federal Police Airport Watchlist).

If you have any questions or concerns about international travel with children post separation, Sarah Bevan Family Lawyers has the expertise and experience to assist you with your case. Give us a call on (02) 9633 1088 or send us an email and we can book you in for an initial consultation with one of our Family Law lawyers.