Can I Travel with my Child Following Separation?

Family Lawyer Georgia Pitsadiotis addresses the legality of a parent travelling with their child, or children, both interstate and overseas. This can often be the cause for significant disagreement between parties both during and following separation.

Overseas travel:

Can a passport for a child be issued, despite objections?

Following the enactment of the Passports Legislation Amendment (Integrity) Bill 2015, recent changes to the Family Law Act 1975 and the Australian Passports Act 2005 have clarified who is required to give consent to a child being issued with an Australian passport.

The above Acts provide that all persons with parental responsibility are required to consent to a passport being issued to a child. This includes any parent to a child if their parental responsibility has not been removed by a Court order and also any person who may legally have parental responsibility, custody or guardianship of the child.

A person may lodge an alert with the Department of Foreign Affairs and Trade if they believe their child is at risk of being issued with a passport in Australia. This alert does not extend to passports which may be issued in countries outside of Australia.

What if a passport is already issued for the child?  Can they travel overseas?

The issuing of a passport for a child and consent for a child to travel overseas are not treated the same.  If the relevant child already has a valid passport, the Family Law Act 1975 provides, at section 65Y:

[A] person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take, or send the child concerned from Australia to a place outside Australia.

That provision however does not prohibit a person from taking a child outside of Australia if:

1. The written consent of each party concerned has been obtained (i.e. any other person with parental responsibility of the child or children concerned as ordered by a Court – this is not necessarily limited to a mother or a father); or

2. It is done in accordance with an order of the Court (i.e. a party may file an “Application in a Case” outlining a detailed request to travel with the child or children which specifies the country of destination and a return date).

Therefore, if a parenting order is in force, or if parenting proceedings are pending, it is an offence punishable by imprisonment to remove a child from Australia without the consent of the other party, or a Court order.

If there are no proceedings before a Court which relate to the child, section 65Y does not apply.

What if I think my child is at risk of being removed from the Commonwealth of Australia?

The Family Law Act 1975 allows for a person to apply for a passport of a child to be delivered to the Court if there is a potential threat that the child may be removed from Australia. For such an order to be made, there must be specific evidence which outlines that potential threat of removal.

Placing a child on the “Family Law Watch List” is a further option available for a feared removal. The Court has jurisdiction to make an order preventing a person from removing a child from the Commonwealth of Australia.  The Family Law Watch List operates through the Australian Federal Police at all places of departure from Australia by sea and air. Placing a child on the List can only be effected through a Court order.

Inter (or intra) state travel:

If there is no parenting plan or Court orders are not in place with respect to travel arrangements for a child, there is nothing which restricts a parent from travelling interstate with their child.

Mutual courtesy aside, only when orders are being contravened are there implications for travelling interstate with a child.

TGB is a leading Australian family law firm. For assistance or more information please contact us.