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What happens if you want to travel overseas and the other parent does not consent?

By February 2, 2016No Comments

In a recent case, a mother who wanted to quickly obtain passports for her children so she could take them to Laos for a holiday has had those plans stymied. In a court hearing about this dispute between parents, the judge acknowledged that while “safe travel is mind-broadening and educational for children”, it was not in the two children’s best interests “to be taken out of school, just after the start of the new school year, on a holiday to visit a maternal family member”.

The mother’s application was part of ongoing, highly conflictual parenting proceedings in the family courts, with the ultimate aim of reintroducing a father into his children’s lives. The couple had split when the children were young, and had originally worked out parenting arrangements between them.  However, it seems that the co-parenting relationship between the mother and the father seriously deteriorated from the time the mother re-partnered. The mother did not wish the father to spend any time with the children, but the father sought orders that the kids be allowed to spend time and communicate with him again after a pause of several years.

What worked against the mother in the passport application was the undisputed evidence that over the years since separation, she had made several moves with the children without seeking the father’s approval in advance and indeed without giving him any notice, “including twice to Country Z, (once after allegedly telling the father that the family was just going on a holiday to Singapore)”. At another time, the father was forced to obtain a Commonwealth Information Order to learn that the mother was living on the north coast of New South Wales. These behaviours concerned the judge sufficiently not to permit the mother to take the children on the proposed trip.

As to the proceedings generally, the judge foresaw a lengthy trial and worried about “the real risk of the children becoming completely estranged from their father. If the children do not start spending time with the father soon, it could very well be too late”. As such, he made interim orders for intensive therapeutic counselling for all parties, within a timeframe leading towards supervised visits.  The timing was argued to be especially important given that the oldest child is already demonstrating a shift or strengthening of his alignment with his mother and rejection of his father, giving rise to concerns about his future psychological development, should his negative view of his father persist.

The children’s names have been placed on Australia’s Watch List (which is in force at all points of arrival and departure in Australia) as a protective measure.

So what does this case tell us?

  1. If you want to travel with your children, do not assume that because you’ve moved around in the past, you will be allowed to travel again;
  2. An Ex can have your children’s names placed on the Australian Federal Police ‘Airport Watch List’, thus preventing your children leaving Australia when you turn up at an airport – this may come as a nasty surprise.
  3. Unless you have a specific order allowing you to apply for children’s passports on your own (sole parental responsibility orders can include this) you will most likely require your Ex’s consent to apply for passports and to travel. Such consent cannot be unreasonably withheld.
  4. Courts can view overseas travel as part of the overall parenting situation, and may decline to make an order allowing travel if the unique circumstances of the case require it (as in this case).

Do you need assistance with obtaining travel documents for your children, or perhaps you wish to stop your ex-partner travelling overseas with your kids? Please contact Cristina Huesch, our Accredited Specialist in family law or one of our solicitors, Sharla Stevens or Angela Li here at Alliance Family Law on (02) 6223 2400 for advice.



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