As government restrictions resulting from the COVID-19 pandemic easing, many families are starting to resume travel. A common question that separated parents often ask is whether they can travel with their children following a separation, and if there are any restraints on travelling.
Like all families, when travelling overseas or interstate, there are certain matters that separated families need to consider. Below we address some frequently asked questions when travelling with children from separated families.
Question: Can I travel with my children after separation?
The ability to travel with your children is largely dependent on the care arrangements that are agreed between the parents. If your parenting arrangements are subject to a Parenting Plan, it might stipulate how travel will occur and what information needs to be shared. If your parenting arrangements are subject to parenting Orders, then the Orders may include provisions relating to travel such as when you are permitted to travel with your children, how long you can travel for and what type of notice and information you need to provide to the other parent. It is important to comply with any Orders in this regard to ensure that you are not contravening any Orders.
A word of caution, penalties can apply if a person travels internationally with a child whilst parenting proceedings are on foot in the Court unless it is pursuant to Orders or there is certain consent given. This also applies to situations where Parenting Orders are in place. If your parenting arrangements are not subject to parenting Orders, then it may still be important that you provide notice to the other parent of your intention to travel with the children. This will promote good co-parenting and keep the lines of communication open.
It is not uncommon for a parent to feel reluctant for their children to travel. This may be due to a variety of reasons such as concerns for their personal safety, that they may miss the chance to spend time with the children or perhaps that the children may miss school or other important events. It can be essential to address any concerns that the other parent may have so that these concerns can be alleviated.
Question: What notice and information do I need to provide to the other parent before we travel?
If you want to travel with the children, you should consider providing the other parent with notice of your intention to travel if it is safe to do so. Such notice should ideally be provided well before your intended travel dates and should generally contain information such as a detailed itinerary for the planned travel, including flight times, a copy of a return flight confirmation and contact details such as an address and a telephone contact number for the children as some examples.
If there is a parenting Order or a Parenting Plan in place, then it is important that you check these documents to confirm what information you need to provide to the other parent as there may be certain requirements in this regard. It is important to contact a suitably qualified lawyer if you are unsure of your obligations pursuant to any Orders or Parenting Plan.
Question: How do I get a passport for my children?
Typically speaking, if both parents share parental responsibility, then both parents will need to sign any and all documents necessary to facilitate the production of an Australian passport and any renewal for such passports. If there is an Order for sole parental responsibility, then the other parent may not be required to sign any documents. Again, it is important that you review any parenting Orders or Parenting Plans and seek legal advice in relation to the meaning of these Orders if you are unsure.
Question: What happens if the parents are unable to reach an agreement about travel?
If the other parent is not agreeable to you travelling with the children, you can attempt family dispute resolution or mediation with respect to this issue. If you are still unable to agree, then the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. If the Court deems that it is in the best interests of the children to travel overseas, then the Court can make an Order that the children can travel overseas without the consent of the other parent.
Question: I am concerned that my partner will remove the children from Australia without my consent. What can I do?
If you are concerned that your children may be taken overseas without your consent, you can apply to the Court to have the children placed on the Airport Watch List, otherwise known as the Family Law Watchlist. The Airport Watch List is maintained by the Australian Federal Police and is designed to prevent listed children from travelling overseas without your consent or an Order from the Court. The Airport Watchlist essentially alerts Police in the event that a person tries to remove the children from Australia. In this case, the children will be stopped at the airport and will not be allowed to leave the country. Generally, you may apply to place your children on the airport watch list in certain circumstances, including when:
- A court has issued an Order limiting or preventing the children’s travel;
- A Court has issued an Injunction limiting or preventing the children’s travel;
- There is an application before the Court seeking to limit or prevent overseas travel of the children;
- There is an application before the Court seeking an Order to place the children on the Family Law Watchlist; and/or
- An Order or Injunction is limiting or restricting the children’s travel overseas which is under an appeal.
If you are concerned that your children may be taken overseas, you should seek immediate legal advice. There are other measures that can also be taken.
Question: Can I travel with my children if their names are on the Airport Watch List but both parents agree for the children to travel?
If your children are on the Airport Watch List, then it is strongly recommended that you discuss any intended travel with a suitably quailed lawyer before you travel. This is to ensure that you are aware of any potential issues that may arise when you travel. If your children’s names are registered on the Airport Watchlist and both parents consent to the children being taken out of Australia, then you will need to remove your children’s names from the Airport Watchlist before you can travel outside of the country. This is an important step which can be overlooked and can be costly and disappointing when travel is already booked. If you wish to remove your children from the Airport Watchlist, and their names were placed on the list as a result of a court Order, you will generally require a further Order removing the children from the Airport Watchlist
Question: My former partner has taken our children overseas without my consent. What can I do?
In circumstances where the children have already been removed from the country without the other parent’s consent, urgent processes can be initiated for their return. This can include an urgent application under the Hague Convention when children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a pathway to recover children who have been abducted so that they can be returned to Australia, or their home country. Not all countries are signatories to the Hague Convention. If your child has been taken overseas without your consent, you should seek urgent expert legal advice. Any delay may impact on your chances of success.
It is important that you understand your rights and obligations if you are planning on travelling with your children. Make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.