1. Children, Overseas Travel & Parental Consent
Separated parents do not necessarily have to end every discussion about holidays in the Family Court.
Where possible, sensible communication should come first.
If you are proposing to take your child overseas, providing the other parent with clear information can make a considerable difference. That could include the destination, proposed dates, accommodation, flight information, contact details and when the child will return.
The Federal Circuit and Family Court of Australia itself encourages parents planning overseas travel to advise the other parent or relevant party and provide details of the proposed trip.
Where parents agree, arrangements concerning travel and passports can potentially be documented through appropriate written consent or consent orders.
Where they do not agree, the Court can be asked to make parenting orders dealing specifically with international travel. These can include orders allowing a child to be taken overseas in particular circumstances.
When considering an application concerning overseas travel, matters such as the purpose and details of the trip, the family’s connections to Australia, the proposed destination and other circumstances relevant to the child can become important.
Quill Legal can help if:
- The other parent will not consent to your proposed overseas trip.
- You believe consent is being withheld unreasonably.
- You need advice before booking international travel.
- Existing parenting arrangements are unclear about overseas holidays.
- You want travel arrangements formalised.
- The other parent is proposing travel and you have genuine concerns about the child being returned.
- You need to apply for or respond to an application concerning international travel.
We will explain the difference between simply disagreeing with a proposed holiday and having legal grounds for seeking orders about it.
That distinction matters.
2. Child Passport Consent & Passport Disputes
Many international travel disputes begin before anybody reaches an airport.
They begin with the passport.
As a general rule, Australian child passport applications require the consent of people with parental responsibility, subject to relevant court orders and other circumstances recognised under passport law. Where full consent cannot be obtained, there may be options through the Australian Passport Office or the Court depending on the circumstances.
If you are the parent wanting to travel, a refusal to cooperate with the passport application can leave you feeling stuck.
If you are the parent opposing the application, you may be worried that signing a passport form could make it easier for the child to be taken somewhere you consider unsafe or to a country from which securing the child’s return may be difficult.
Both situations deserve careful advice.
Quill Legal can advise you about:
- Disputes over consent to a child’s Australian passport.
- Existing parenting orders dealing with passports.
- Applications for court orders concerning the issue of a passport.
- Passport arrangements connected with proposed international travel.
- Concerns that another person may be attempting to obtain a passport without proper consent.
- Orders requiring a passport to be delivered to the Court where there is a risk of overseas removal.
If the issue is really about the proposed travel rather than the passport itself, we will help you focus on that underlying problem.
There is little value in fighting about a document without addressing the reason behind the fight.
3. Preventing a Child From Being Taken Overseas
Few things are more frightening for a parent than believing their child could shortly be taken out of Australia without their agreement.
Perhaps the other parent has suddenly booked flights. You may have learned that belongings are being sold or packed. You may be concerned because of comments about moving overseas permanently. Or there may already be conflict about where the child should live.
Not every overseas trip presents an abduction risk, but when the concern is genuine, timing can be critical.
The Court can make orders restraining the removal of a child from Australia. Orders can also deal with passports and request that the Australian Federal Police place the child on the Family Law Watchlist.
Quill Legal can help you assess:
- What has actually happened.
- Whether travel has been booked.
- Whether the child already has an Australian or foreign passport.
- Whether parenting orders are already in place.
- Whether parenting proceedings have started.
- The proposed country of travel.
- The other parent’s connections with Australia and overseas.
- Whether previous threats or attempts to relocate have been made.
- Whether urgent court action should be considered.
Where parenting orders exist, or parenting proceedings are already underway, taking or sending a child out of Australia without the required authenticated written consent or a court order can amount to a criminal offence under the Family Law Act.
That is why both parents should obtain proper advice rather than making assumptions about what they can or cannot do.
If you are concerned a departure is imminent, tell us immediately when you contact Quill Legal.
4. Family Law Watchlist & Child Alert Requests
The terminology around stopping international travel can be confusing.
You may have heard people refer to an “airport watch list.” In Australian family law matters, the formal AFP mechanism is the Family Law Watchlist.
The Family Law Watchlist is designed to assist in preventing the unlawful removal of children from Australia in relevant family law circumstances. Depending on the situation, a finalised court order or a filed court application may form part of what is required before the AFP can place a child on the Watchlist.
Where appropriate, the Court can be asked to make an order restraining a child from leaving Australia and requesting that the AFP place the child on the Family Law Watchlist.
A Child Alert Request is different.
A child passport alert tells the Department of Foreign Affairs and Trade to give particular scrutiny to an Australian passport application for the child. It does not automatically prevent a passport from being issued, and it will not by itself stop a child travelling where the child already has, or is entitled to use, a valid Australian or foreign travel document.
That difference is important.
If the concern is that somebody may obtain an Australian passport for the child, a Child Alert Request may be relevant.
If the concern is that a child who already has a passport may actually leave Australia, broader family law orders and the Family Law Watchlist may need to be considered.
Quill Legal can help you understand which option relates to your circumstances instead of simply filing paperwork and hoping it solves the problem.
We can assist with:
- Advice about the Family Law Watchlist.
- Applications for orders restraining international travel.
- Orders dealing with a child’s passport.
- Child Alert Requests and related passport concerns.
- Urgent applications where departure may be imminent.
- Responding where another parent has sought orders restricting your proposed travel.
5. When a Child Has Already Been Taken Overseas
Preventing a child from leaving Australia and securing the return of a child who is already overseas are very different legal situations.
If your child has already left Australia without your permission, or was allowed to travel but has not been returned as agreed, seek legal advice quickly.
The Hague Convention on the Civil Aspects of International Child Abduction provides an international process that may assist with the return of children wrongfully removed to or retained in another participating country. Australia’s Attorney-General’s Department acts as Australia’s Central Authority for the Convention.
Whether the Hague Convention can be used will depend on the circumstances, including the country involved.
Where the child is in a country outside the relevant Convention arrangements, different options may need to be explored.
Quill Legal can help you understand how the international issue relates to your Australian family law matter and what steps should be considered next.
This may involve matters such as:
- A child taken overseas without permission.
- A child not returned to Australia after an agreed holiday.
- Allegations that a parent has wrongfully removed or retained a child.
- Hague Convention proceedings.
- Australian parenting proceedings connected with the international dispute.
- Advice about recovery-related orders and the appropriate process.
- Coordinating the Australian family law position with overseas legal assistance where required.
If the child is still within Australia but has been taken from your care or cannot be located, a Child Recovery Order may instead be relevant. This is closely related to, but legally different from, international child abduction. The Federal Circuit and Family Court notes that where a child has already been taken overseas without permission, Hague Convention assistance may be available rather than the ordinary domestic recovery process.
