Can the Other Parent Legally Take My Child Abroad?

When One Parent Wants to Travel Overseas with the Children: Your Rights Explained 

Navigating co-parenting can be challenging, especially when international travel comes into play. Whether it’s a holiday, family event, or an unexpected relocation, one of the most common questions separating parents ask is: Can the other parent legally take our chid overseas without my permission? 

What the law says about Parental Responsibility 

 Under the Family Law Act 1975, both parents are presumed to have equal shared parental responsibility unless a Court has ordered otherwise. This means that both parents should agree on major decisions about their child’s life, including overseas travel.  

 What if there are no Court Orders in place and the other parent is threatening to take the child overseas? 

Even if there are no Court Orders in place, Australian law generally assumes that both parents share equal parental responsibility. This means that major decisions, such as international travel, should be made jointly. 

However, there is nothing automatically preventing one parent from taking the child overseas, especially if the child already has a valid passport. While this may go against the spirit of shared responsibility, it can still happen unless legal safeguards are in place. 

If the child doesn’t have a passport, can the other parent get a passport for the child without my consent? 

 In most cases, no, a parent cannot obtain an Australian passport for a child without the written consent of both parents (assuming both parents are named on the child’s birth certificate). 

Unless there is a Court Order or exceptional circumstances (such as the other parent’s whereabouts being genuinely unknown), the Australian Passport Office requires the consent of all legal guardians before issuing a child’s passport. 

If you are concerned that the other parent might apply for a passport for your child without your knowledge or permission, you can lodge a Child Alert Request with the Australian Passport Office. This alert flags your child’s name in the system, prompting the Department of Foreign Affairs and Trade (DFAT) to scrutinise any passport application made for the child. 

 If a passport application is submitted for the child while the alert is active, DFAT will notify the parent who lodged the request. These alerts typically remain valid for 12 months and can be extended by a court order if needed. 

However, it’s important to understand that a Child Alert does not guarantee that a passport application will be refused. It also does not prevent travel on a valid passport (Australian or foreign) that has already been issued. 

What if my child is entitled to a passport from another country (Dual Citizenship)? 

 The process of issuing foreign passports to children varies depending on the country involved.  

If you have concerns about this, it is important to seek legal advice as early as possible. Legal advice can help you take steps, such as notifying the relevant Consulate or Embassy, that you do not consent to your child being issued with a passport by them. 

What can I do if my child already has a valid passport? 

 If your child holds a valid passport (Australian or foreign) and you have genuine concerns that the other parent may attempt to take your child overseas without your consent, you should consider applying to the Federal Circuit and Family Court of Australia. In this application, you can seek Orders to restrict or prevent international travel with the child.  

In addition, you can request that your child’s name be placed on the Australian Federal Police Family Law Watchlist. This is a crucial safeguard, as airlines and border authorities check this list before allowing a child to leave the country. Early legal advice is recommended to ensure your child is placed on the Family Law Watchlist before the other parent’s intended travel date. 

What if the other parent has already left Australia with the child? 

 If the other parent has taken your child overseas without your consent, this may be considered international parental child abduction. 

 Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a legal framework for seeking the return of a child who has been wrongfully removed from or retained outside Australia without the appropriate consent. If the child has been taken to another Hague Convention country, Australian authorities can liaise with the authorities in that country to request the child’s return where appropriate under the Convention.  

Whether this process is available depends on which country your child has been taken to, as the Hague Convention only applies between countries that are also signatories. Prompt legal advice is essential to determine your options and begin the application process, if appropriate. 

I’m still worried, who can help me? 

If you still have concerns about the other parent taking your child overseas without your permission, we recommend seeking legal advice through a specialised family lawyer. 

For all enquiries, please contact TGB Lawyers’ family law specialists: 

• Georgia Pitsadiotis
  gpitsadiotis@tgb.com.au
  (08) 8205 1256 

• Nicola Berlingeri
  nberlingeri@tgb.com.au
  (08) 8205 1256