By Bronwyn Montgomery (Lawyer) and Kristina Antoniades (Special Counsel)
For parents, the thought of their children travelling overseas with the other parent post separation, can be stressful and trigger anxiety. However, children’s lives should not be affected by the separation of their parents – they should still have the same opportunities they would have had, had their parents remained together. This is of course subject to the safety of the children.
If you want to travel overseas with your child or children post-separation, there are two main ways that you can achieve this:
- By consent of the other parent; or
- Pursuant to a Court order.
It is important to be aware that, once parenting proceedings are issued in Australia, or certain parenting orders are made by an Australian Court, it becomes an offence under the Family Law Act 1975 to send, take or retain a child outside Australia without the other parent’s permission. There are limited exceptions, but a person who commits this offence could face criminal penalties of up to 3 years’ imprisonment.
Preventing the removal of children from Australia
If you are concerned that your former partner or someone else may take your child outside Australia without your consent, you may consider the following preventative measures.
Keep the child’s passport in your possession (if possible)
You should also be aware that, if your child is eligible for a passport under a different nationality, some countries only require one parent’s signature to obtain passport for that child.
Apply for a child alert
You can apply for a child alert with the Department of Foreign Affairs and Trade via the Australian Passport Office. Note that:
- this can only be done if you have parental responsibility over a child. Parental responsibility means all duties, powers, responsibilities and authority parents have in relation to a child. It is presumed that parents share equal parental responsibility for a child unless there is a Court order giving one parent sole parental responsibility. Parental responsibility is not the same as time spent with a child.
- The application will cause the Passport Office to alert you if an application is made for a passport for the relevant child and will scrutinise that application. However, it does not mean that the Passport Office will not issue the passport.
- The alert lasts for 12 months (unless there is a Court order to extend it).
Apply for a Family Law Watchlist Order
This order restrains a parent from removing the child from Australia. This allows the Australian Federal Police (AFP) to put the child’s name on a special list which will be flagged at all points of departure in Australia. The AFP can then prevent the child from being removed should an attempt be made. You can obtain the order by including an urgent application to the Court for parenting orders and completing an online form supplied and sending these documents to the AFP. The child’s name will remain on the watchlist until a further Court order is made.
Where do you turn when your child has been sent, taken or retained outside Australia by the other parent without your consent? If this happens, you should seek the urgent advice of a family lawyer who will discuss options with you, including in relation to the Hague Convention. Please see our earlier post on the Hague Convention and its applicability in Australia.
If you have any questions in relation to this post, or parenting matters generally, please don’t hesitate to contact a member of our Family & Relationship Law team.