The legalities of taking your kids on holiday if you’re separated

The legalities of taking your kids on holiday if you’re separated

For many Australians who have delayed holidays abroad or who wish to reunite with family and friends overseas, the return of international travel is a very welcome change. But for single parents who are co-parenting, navigating international travel isn’t as simple as renewing a passport, booking a flight, and packing a suitcase. When planning international travel with your child, it’s important to know the obligations you have before departing Australia as a co-parent, to avoid any potential legal issues that have serious consequences.

If you’re planning an international trip with your child, there’s one vital point to keep in mind: you must first communicate with your co-parent about your travel plans. If you don’t, there may be serious consequences, which are explained below.

What does the law say about co-parents making decisions for their child?

Under the Family Law Act 1975, the main piece of legislation governing family law in Australia, there is a presumption that both parents have “equal shared parental responsibility” for important decisions made on behalf of a child. This is of course without Court Orders in place, which may remove the presumption of equal parental responsibility, in circumstances where its application would not be in the best interest of the child.

Under the presumption of equal parenting responsibility, important decisions include, but are not limited to, health, schooling, relocation, religion, and travel. You must consult your co-parent before making any of these decisions on behalf of your child.

Open communication and compromise

There are many ways to ensure both parents are happy with the travel plans. It’s not uncommon for the non-travelling parent to ask for a travel itinerary. For peace of mind, you might share with your co-parent your return flights and accommodation plans. If you’re planning a lengthy trip, the children might miss spending their usual time with the non-travelling parent.  In these situations it is generally expected to arrange some “make-up time” with your co-parent when your child returns home.

When should you involve the Court or a family lawyer?

If you’ve spoken with the non-travelling parent, offered to send them your travel itinerary and offered “make-up time”, but they still don’t consent to the travel, there are further steps you can take. If you think the non-travelling parent is being unreasonable with their objection, you may choose to apply for a court order for the international travel to occur without the other parent’s consent. The court may choose to allow the travel to occur if they believe it’s in the best interest of the child – but in this situation, remember the Court has discretion to say yes or no to your travel plans. It’s important to speak to a family lawyer about this first, as every situation is different.

Although this is very uncommon, it’s important to be aware there are times where a non-travelling parent may require more information to ensure the child’s safe return to Australia. For example, if you’re concerned that your co-parent will stay in the country which they’re traveling to for longer than the agreed time, or secretly plans to relocate your child to this country, you might apply to the Court to ask for a surety payment to guarantee your child’s return. This payment would likely be for the cost that you would be forced to pay to return your child to Australia by court order. This payment only tends to be actioned in exceptional circumstances, however.

The risk of travelling anyway

If you don’t consult your co-parent and choose to leave Australia with your child without their consent, or while waiting for the Court’s decision, the consequences can be serious. If you’re traveling to a country that has signed the Hague Convention on the Civil Aspects of International Child Abduction, your co-parent in Australia can apply for a court order, seeking the help of authorities in the country you’ve travelled to, to safely return your child to Australia. The same law applies if your co-parent has taken your child overseas without your consent. In this circumstance, the non-travelling parent can also apply for an Airport Watch List Order, which can stop your child’s travel at the border.

Further, if you take a child overseas without a co-parent’s or the Court’s consent when court proceedings are underway or parenting orders are in place, you could be committing a criminal offence under sections 65Y and 65Z of the Family Law Act (the Act), which if convicted can lead to a maximum of three years imprisonment.

With international travel making a comeback, it’s important to understand your obligations as a co-parent when planning international travel with your child. The key takeaway here:

  • You must consult your co-parent about your travel plans
  • Think twice before you choose to continue with an international trip that hasn’t been agreed on.
  • If you fail to consult your co-parent and choose to take your child on an international trip that is not agreed on by both parents, this can be considered child abduction under the law.

If you’re considering international travel and have not received consent from your co-parent, it’s recommended that you contact a family lawyer to discuss your arrangements, options, and find the best way forward for you.

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