Holiday travel consent for children – don’t forget to pack that too, writes Nevine Youssef, Family Law accredited specialist and partner at local firm Marsdens Law Group:
Everything’s packed? You’re ready to go? Family is excited? Plane tickets? Permission from the other side in relation to travel arrangements for the children? It maybe a surprise to know that separated parents travelling with their children without the other parent need formal consent from the other party before leaving the country.
If there are current parenting orders in place which allow for the overseas travel of the children, the travelling parent should take with them a certified copy of such orders. If there are currently no orders in place to this effect, the travelling parent will require written permission from the other parent, witnessed by a JP or a solicitor.
The potential embarrassment of being stopped by Customs and Immigration at the airport and then being denied permission to travel with your children is bad enough. However, penalties also apply for parents who are in breach of this arrangement. During the holiday season, many parents wish to travel with their children but may not realise there are legal restrictions surrounding this.
If there are current parenting orders in place and a parent wishes to take a child out of the country without the other party’s permission, they may potentially be in breach of a criminal offence under the Family Law Act 1975. This also applies if one party has applied and filed an application seeking orders to this effect.
Coupled with this is the requirement that both parents are to sign a passport application for the parties’ children unless one of the parents is able to convince Department of Foreign Affairs and Trade that there are special circumstances which preclude such a requirement, or further, the granting of a Court Order to this effect.
A key question arising from this discussion is whether you should allow your former partner to take your children overseas or whether you should allow your children to go overseas if the other parent wants to take them. This very question has been brought to the forefront of recent media attention with Brisbane mother, Sally Faulkner, becoming embroiled in a controversy with a TV network program when she attempted to grab her children from their father in Lebanon, after giving permission for her children to travel with their father to that country, with him later refusing to return the children to Australia.
The relevant law pertaining to these questions relates to Section 65Y and 65Z of the Family Law Act 1975 which, if breached, can lead to up to 3 years imprisonment.
Measures to best prevent such events occurring include a child alert to prevent the issuing of an Australian passport, or further, placing a child on the Family Law Watch List, more commonly known as the Airport Watch List. To bring such action, court proceedings will need to be commenced.
A key point in relation to child custody issues and travel is the Hague Convention. This Convention is an international agreement where 90 countries which are signatories to this Convention agree to uphold child custody orders from the other signatory countries in the event that a parent remove or unlawfully retain a child in one of these countries without consent.
A point of clarification should be that parents wishing to travel with their children on holiday interstate have far more flexibility.
There are no restrictions on travelling anywhere in Australia during the time the children are in the care of a parent unless this is specifically prohibited in Court Orders.
If this is not specified in any orders, you do not have to provide details of where you are staying or going. However, it should be noted as a point of courtesy, it makes for good co-parenting if you let the other parent know if you are intending to travel with the children including duration and location.
It is always important to ask yourself as a parent the question ‘would I like to know where my children are travelling if I was in the other position?’
Forward planning, cooperation and common sense can best ensure that both you, as the parent and your children have a safe and enjoyable holiday together.
• Contact Nevine Youssef by phoning 4626 5077 or email at nyoussef@marsdens.net.au
• The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
