Family Law
What Family Law Says About A Divorced Parent Travelling Abroad With Their Children

What Family Law Says About A Divorced Parent Travelling Abroad With Their Children

When couples with children divorce, normally most matters are settled amicably, and usually with the help of each parent’s family lawyer. However, a situation can arise which, to most people, would not normally seem like a problem, but for divorced parents with children, it can prove to be an issue.

Family lawyers advise that one such scenario is when one of the parents wishes to take their children overseas. Obviously, to do so, any child travelling to another country will need a passport, and this can often be the first hurdle if the other parent refuses to sanction the child being issued a passport.

This is a result of joint parental responsibility, which is the usual default position following a divorce where the couple has any children. This means that each parent has the right to be informed of and must agree to a passport being issued. Even if they already have a passport, taking children out of the country is another situation where joint parental responsibility applies.

Now there can be many reasons a parent would refuse permission, with some of them legitimate and some not so much. With the latter, it could be that the absent parent simply wants to make things difficult and refuses permission out of spite.

In this scenario, the other parent could apply to the court to have joint parental responsibility order amended so that matters like passports and overseas travel were excluded. They would certainly have a strong case as the Family Court does not look favourably upon parents with joint parental responsibility being belligerent, especially if their actions are not in the best interests of their children.

On the other hand, there could be a genuine reason why a parent refuses such as the fear that the other parent plans to take the children overseas and not return to Australia. This could give rise to a belief that the other parent is also planning to take the children overseas without their consent, which is contrary to Family Law and the principle of joint parental responsibility.

Suppose that was a genuine fear that parents should in the first instance, communicate with the Dept. of Foreign Affairs and send them a Child Alert Request Form. That may result in an order being granted by the Family Court that places the children in question on to an Airport Watch List.

Unless a child is on that list, the other parent has no real barriers to taking the children overseas. Provided they have all the necessary documentation, such as the children’s passports, the airport and border authorities will have no cause to stop them.

Now, that does not mean that taking children overseas without consent does not mean consequences for any parent who does so. They are in fact, breaking the court order that granted joint parental responsibility and are thus committing a crime.

Even if the trip overseas was for a holiday, and they returned, the courts will not see that as any kind of justification, especially if it was done without even consulting the children’s other parents.

The Family Court may rescind that parent’s right to have the children live with them, or it may grant sole parental responsibility if it feels the children’s best interests are best served by doing so.

More seriously, a parent who takes their children overseas without consent could face up to 3 years imprisonment, which is a heavy price to pay for not asking for permission to take children on an overseas holiday.