International Travel With Children After Separation

The Covid-19 pandemic saw borders close and travel plans halted, which within the family law context, meant that overseas travel with children after separation became near impossible. We have observed that with the reopening of Australia’s borders, there has been an increase in discussions and negotiations between separated parents and their family lawyers, about overseas travel with their children.

In this article, we will explore issues that affect both travelling and non-travelling parents.

Issues for the Travelling Parent:

• Obtaining a passport for your children post-separation 
• How to approach discussions with the other parent to allow travel
• What happens if the other parent doesn’t agree to the children’s travel?

Issues for the Non-Travelling Parent:

• What can be done if you have immediate concerns about your children being taken overseas without your consent
• What can be done if your children are not returned to Australia 

Obtaining a Passport For Your Children Post-Separation

It is important to know that in Australia, both parents must consent to children obtaining a passport. Similarly, if your children do have a valid passport, both parents must also consent to the children leaving Australia. 

This can present issues for parents wanting to organise overseas travel with children after separation, especially where a relationship breakdown between parents may not be amicable. While Australia requires the consent of both parents for children to leave Australia, there are some countries that may only require the signature of one parent. For this reason, you will need to seek legal advice depending on where you are travelling to and from.

Effective Discussions With your Co-Parent

As family lawyers, it is common that we help parents draft the terms of their parenting arrangements, including  specific arrangements regarding overseas travel with children. Typically, there are clear parameters in the agreement about the parent’s ability to travel with their children overseas, including what information the travelling parent will need to provide to the non-travelling parent prior to the date of departure. 

This information is designed to provide the non-travelling parent with clarity about where their children will be travelling to and provide security that their children will return home to Australia.

Our advice to clients who come to us wondering if they can travel overseas with their children post-separation is that it is always wise to plan well in advance to get ahead of any potential disagreement. This means getting all your ducks in a row by gathering all the relevant information and presenting it to the other parent early.

Information To Provide The Non-Travelling Parent

When introducing your wish to travel overseas with your children, you should ensure you have the following information on hand: 

• Details of all flights (ensuring return flights); and
• A detailed itinerary (including contact details for each place that the children will be staying at)

Be prepared to provide a reasonable explanation to the other parent about why the travel is desired other than just a holiday. For example, to see family members, to continue a cultural connection with their heritage or as a learning experience. Importantly, you must demonstrate that you have an intention to return with the children to Australia. 

In our experience, it can be helpful to consider a shorter period of travel rather than an extended period of travel, especially for the first instance of international travel post-separation, or even post-pandemic.

Approaching the other parent and presenting them with a proposal, rather than only stating that you will be travelling overseas with the children, is more likely to be met with a positive response. Giving the other parent all the details of your intended travel gives them clarity and can provide peace of mind. This approach can go a long way in helping you to obtain their signature for a passport and consent to international travel. Where there are more questions than answers is where a negative response or flat refusal will be more likely.

Where There is Family Violence

In the event you are seeking to travel internationally with your children to escape family violence or a domestic violence situation, there are a number of options and channels for interim support, until such time that the right avenues can be followed to enable overseas travel with your children. Seek urgent advice from a family lawyer to learn about the short-term assistance that can be accessed in these circumstances.

However, where there are no concerns of domestic or family violence, what happens if you have gathered all of your information, and after providing your plans, you learn that the other parent will not consent?

When An Agreement Cannot Be Reached

It is not uncommon for discussions between parents regarding overseas travel with children to become heated, particularly where the travelling parent is a citizen of the country the children are travelling to. This is often due to a fear that the children will not be returned to Australia. 

As always, in Family Law, the Court considers the best interests of the children as paramount when it comes to making decisions post-separation. If one parent does not agree for the children to travel, the travelling parent can make an application to the Court seeking an Order to permit the children to leave Australia. 

The travelling parent will be required to provide the Court with information about the travel and efforts to gain consent from the other parent. The travelling parent will need to provide the following: 

• Details of travel overseas, including flights
• Reasons for travelling overseas
• Benefits to the children in travelling overseas
• Evidence or examples of attempts to resolve discussions regarding travel 
• Details of any security you are prepared to offer (such as a bond to the Court)
• The proposed date for returning to Australia
• Details of both parents’ and the children’s ties to Australia.

When the Court considers whether travel should be permitted, in addition to the core concern of whether the travel is in the best interests of the children, they will also take into account:

• The length of the proposed stay
• The sincerity of the application
• The effect on the children of any deprivation of contact
• Any threats to the welfare of the children by the circumstances of the proposed environment (keeping in mind any Covid-19 restrictions and travel advice on the Smart Traveller website)
• The degree of satisfaction of the Court that a promise to return to the jurisdiction would be honoured.

For the Court to make an Order to allow the travel without the consent of both parents, the travelling parent must satisfy the Court that the children will be returned.  

If the non-travelling parent raises relevant concerns, the Court can take into consideration the past conduct of the parent wishing to travel. For example, if a travelling parent has previously threatened to not return to Australia, the Court may then consider whether the travelling parent can effectively offer bail, which is known as surety. 

Whether a surety is suitable in the circumstances is decided on a case-by-case basis. It is dependent on whether the travel is considered urgent (a funeral or illness, for example), or not. The surety can be in the form of the travelling parent paying a determined sum of money into the trust account of the non-travelling parent’s solicitor to be refunded to the travelling parent upon their return to Australia with the children. This is so that in the event the children are not returned home to Australia, the non-travelling parent has funds to progress an application for their children’s return. 

What To Do If Your Children Are Not Returned To Australia

In the event that your children have travelled with their other parent overseas and have not been returned home to Australia, this may be considered as international abduction. In this case, The Hague Convention on the Civil Aspects of International Child Abduction will govern the process to seek the return of the children to Australia. The Hague Convention is the main international agreement covering international parental child abduction. The Convention will require an application that will go through the Australian Central Authority (ACA) in the Attorney-General’s Department, who is responsible for administering the Convention as it relates to children whose habitual residence is in Australia. 

So, your first steps to having your children returned home safely, is seeking assistance from a family lawyer, who can help provide you advice, and support you in preparing the necessary evidence for an ACA application. 

Importantly, applications under The Hague Convention for the return of a child to Australia can only be made to or from a country if all the following apply:

1. That country has signed the Convention and is therefore a contracting party to the Convention;
2. The Convention is in accepted by Australia as being in force between the two countries; and
3. The Hague Convention is enforceable in the country the children are travelling to. 

It is not enough for the country to simply be a signatory to the Convention. For example, Russia acceded to the Convention in 2011, but it is not yet enforced between Russia and Australia. Therefore, if your children are abducted to Russia from Australia, currently, it will not be possible to seek a return of the children to Australia under The Hague Convention.

Even if you can seek your children’s return through the Convention, typically the process is long, stressful and exhausting for parents. Having a lawyer with experience in international family law matters to assist you can mean a quicker application to have your children safely returned to Australia. 

Have Immediate Concerns About Your Children Being Taken Overseas Without Your Consent?

If you are concerned that a parent may attempt to fraudulently obtain a passport for your children, or if your children already have a passport, and you are concerned that the other parent may travel with them overseas without your consent, you should take steps to place your children’s name on the Australian Federal Police Family Law Watch list. Once your children are registered on the AFP Family Law Watch list, they will be stopped at all entry and exit points, both to and from Australia. 

Given the complexities of pursuing the return of children to Australia under The Hague Convention, it is far more preferable to stop your children from leaving Australia without your consent rather than seeking their return to Australia through The Hague Convention, given that they will have already departed Australia’s borders.

Urgent applications to prevent children from leaving Australia and assistance with navigating the return of children to Australia, must be actioned early because any delay may significantly hinder the success of any subsequent applications regarding your children.

International Travel With Children

Regardless of whether you are the travelling parent or non-travelling parent, it is incredibly beneficial to approach post-separation parenting matters well-informed of your legal options, especially where you wish to approach these matters in the most productive, amicable and time-sensitive way. Where you can, it is best to seek advice before engaging with the other parent, to ensure you are aware of where you stand and so that you can approach such matters in a way that the Court will view as being in the best interests of your children.