Parenting orders and court proceedings. Can you legally travel overseas with your children?

By Amanda Humphreys, Senior Associate, MST Lawyers

Are you considering travelling overseas with your family over the Australian summer school holidays?  If there are parenting orders in place or court proceedings pending, our family law team recommends you seek legal advice before travelling with your children, to ensure enjoyable and incident-free travel for your family.

Important issues to consider before travelling with children who live in two family households, include:

Passports

• Do the children have current passports?
• Does the validity of the passport extend sufficiently for the requirements of the countries to which you are travelling?
• Do you have access to the passports?

Parenting orders or court proceedings

• Are there parenting orders relating to the children; made in Australia or overseas?
• Are there court proceedings on foot in Australia or elsewhere? 
• If there are parenting orders in place or court proceedings pending, is the travel in accordance with any court order or with the consent of the other parent?
• If not, we encourage you to seek prompt advice in light of the provisions of:
  • Sections 65Y and 65Z of the Family Law Act.  These provisions impose a penalty of imprisonment of up to three years for a parent (or a party or a person acting on behalf or at the request of a parent/party) to remove a child from Australia, without a court order or the authenticated consent of the other parent (or any other person who benefits from the orders or is a party to pending parenting proceedings); and
  • The provisions of the Hague Convention on the Civil Aspects of International Child Abduction.
• Travelling overseas with a child contrary to a court order may also constitute a contempt of court

Family Law Watchlist (Airport Watch List)

This system is designed to alert police to the movement of children where children are involved in family law matters.

• Are your children named on the Family Law Watchlist (Airport Watch List) , such that they will be stopped at the airport from leaving Australia?
• Is the listing of the children on the Family law Watchlist conditional (eg. permitting travel with authenticated consent from the other parent) or absolute?
• If you are unsure if your child is currently on the Family Law Watchlist, we can assist you to enquire with the Australian Federal Police.

Authenticated consent

• Where authenticated consent is required, regulation 13 of the Family Law Regulations provides how the written consent is to be authenticated, pursuant to the Statutory Declarations Act 1959 .

Concerns about improper removal of children from Australia

If you have concerns that a child may be removed from Australia improperly, you should promptly seek expert legal advice. 

Where there is an imminent risk of a child being taken overseas improperly, you should contact the police immediately on 000.

For further information, see our online news articles:

• International travel for separated parents – recent changes to passport legislation (December 2015)
• Protecting children from unlawful removal from Australia (September 2015)

 

MST Lawyers’ Family Law team has significant expertise in international family law, including in respect of child and parenting matters. If you require assistance with an international family law matter please contact us by email or by telephone + 61 3 8540 0200