Travelling with children from separated families
As the summer holiday period approaches, many families consider travel.
Whether it is overseas or interstate, when travelling with children from a separated family, there are additional considerations and planning required. It may seem like a long way ahead but it is only around 10 weeks until school holidays commence and if you are planning to travel, now is the time to organise your children’s matters.
For interstate travel, it is primarily dependent on what arrangements are in place for the children. If you are bound by court orders, there can be a restraint on travel without consent or it may be that your intended travel could interfere with the other parent’s time with the children. If you are bound by a court order it is vital that you ensure that you communicate with the other parent and obtain their consent to your travel. Without consent, you will be in breach of court orders.
Many parents want to provide the experience and opportunities to see the world to their children however if there is a parenting order in place or an order pending, it is an offence to remove a child from Australia unless you have the written consent of the other parent or a court order (ss.65Y and 65Z of the Family Law Act). Unauthorised removal of a child from Australia carries a criminal penalty.
Some countries, such as South Africa, also require evidence of Court authorisation or consent from the other parent to even enter that country (and subsequently leave) with a child. You may need to get specific Court Orders regarding such travel, or an affidavit from the other parent. It is therefore best to also make enquiries with the intended country/ies of travel about any requirements that country has.
The key for single parents who are planning to travel is notice. You need to let the other parent know your plans and obtain their consent. This gives the non-travelling parent time to decide, but it will also give you time to consider your options if you do not receive the other parent’s consent.
The other parent may however feel reluctant for their child to travel for many reasons. They could hold genuine concerns that the child could be permanently removed from Australia, risks to their personal safety, they may miss the chance to spend time with the child or perhaps that the child may miss too much school or other important events. You need to be able to address each of these issues.
If a parent refuses to agree to your travel, you will need to apply to the Family Law Courts for approval. Generally, the courts will permit a child to travel overseas as long as they are satisfied that the child will return to Australia at the end of the intendedntravel and arrangements are made for the child including ‘make up time’ with the other parent.
The first obstacle could be obtaining a passport for your child. The passport application requirements for children are strict and both parents must sign the application. If one parent refuses to sign the application, then you will need to seek an order from the Court for the passport to be issued. This can take some time and you will need to explain in detail the arrangements for travel to the court and your attempts to have the other party sign the passport.
Australian Federal Police Watch List
In some cases, a parent who has concerns about their child’s travel can make an application to the Family Law Court to have their child placed on the Australian Federal Police Watch List. The listing on the Watch List can only occur pursuant to a Court Order and will prevent that child from leaving from any port of exit in Australia.
In some cases, children’s names can remain on the Watch List into their adulthood. It is now common practice to put a child on the Watch List for a specified time.
The only way to remove a child from the AFP Watch List is by written consent of both parents or a court order. Therefore, if the non-travelling parent refuses, you will need to make an application in the Family Law Courts for the removal of your child’s name,
If you do not wish for your child to travel overseas
For parents wishing to restrict travel of a child overseas, that parent can refuse to sign the passport application, refuse to release the child’s passport, or make an Application to the Family Law Courts to have the child placed on the Australian Federal Police Watch List.
You can make an application under s.67ZD of the Family Law Act for your child’s passport to be surrendered by the parent or make application for the child to be place on the Watch List. This process can occur very quickly if you are concerned about imminent departure.
Once the court makes the order, the federal police will intervene if your child’s passport is used at any exit point.
Overseas travel can be highly beneficial for children, however parents need to find the balance in possible competing interests of ensuring the safety and wellbeing of your child and their opportunity to explore the world around them.
Your summary for tips for travel:
Key Children’s Matters
1. Provide as much notice as you can to the other parent.
2. Communicate openly about where you are staying and provide the itinerary and contact details for where you are staying.
3. Provide the opportunity for ‘make up time.’ If the other parent was supposed to spend time with the non-travelling parent during the period of travel.
4. Obtain a passport with the assistance of the other parent, or a court order to permit the issuing of a child’s passport.
5. Seek an order from the family law courts to permit the travel and/or remove a child from the watch list.
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