Travelling overseas with your children after separation
You separated from your children’s other parent 2 years ago and now you want to take the children to the UK for Christmas. You are picturing the idyllic cottage surrounded by snow, Christmas tree by the fireplace, your children joyful and merry…
While there is no doubt that a White Christmas is high on the bucket list for lots of people, taking children that are part of a separated family overseas for Christmas is a major cause of contentious family issues and potentially, a deal breaker. Separation or divorce doesn’t have to mean the end of a magical Christmas Day for your children, but it does mean that you should first confirm where you stand legally and make sure you plan ahead.
Here are the top four issues we see developing as the Christmas season rolls in and what to do about it:
Scenario 1: You realise the children need passports and find out the other parent must sign the passport application too. You can’t find the other parent and there are no court orders in relation to children in place.
You could apply though the Australian Passports Office to be exempt from providing the other parent’s consent. Whilst this situation is contemplated in the Act and regulations, it is at the discretion of the Minister. If you choose this option allow yourself enough time to go to court if needed.
You could apply to the Court to be able to obtain a passport without the consent of the other parent. If you obtained the order, then the Passport office would issue the Passport without the other parents’ consent. You will also need to apply for an exemption from attending Family Dispute Resolution.
If this is your situation I would recommend you obtain legal advice as soon as possible. Although it is possible to have a child’s passport application processed without the other parent’s signature, you may also need to jump through a few more hoops to be able to legally leave Australia with the children.
Scenario 2: You have passports for the children but the other parent says they won’t agree to you taking the children. There is nothing in any Court orders about overseas travel.
Providing the children are not on the airport watch list (which would have required a Court order) you may be successful in the leaving the country. However, technically you need the other parent’s consent and it may be a criminal offence to remove the children from Australia. If the other parent has indicated in any way that they do not approve of the children being taken overseas for Christmas and then finds out you are intending to ignore their refusal, they may go to Court to seek an order to stop the children departing. Once they have filed the application they can have the children placed on the airport watch list.
After attending Family Dispute Resolution, you could apply to the Court for permission for the children to travel overseas although if you have current children’s proceedings that have progressed to the Court, attending Family Dispute Resolution is not required. Normally on discrete issues like a short overseas holiday, the Court can deal with this on an interim basis or at a fast-tracked final hearing but it is subject to Court availability and the circumstances of your matter.
In both circumstances, I would recommend you obtain legal advice about your situation. Find out the risks. Get advice on how best to manage the situation.
If you had an Airport Watch order in the past, don’t forget to check that it has been lifted.
Scenario 3: You have passports for the children but the current Court orders stipulate that the other parent must provide express consent and they won’t, or the children are on the airport watch list, pursuant to previous court orders and need to be removed.
Depending on the order that placed the children on the watch list, with the other parent’s consent you may be able to obtain an authenticated consent to allow them to travel (this must comply with the Family Law Act).
If the other parent will not agree to have the children removed from the watch list, you will need to attend Family Dispute Resolution. If an agreement cannot be reached at Family Dispute Resolution you will have go to Court and seek permission from the Court to have the children removed from the watch list.
If there is some urgent need for the travel then you may be able to apply directly to the Court based on urgency.
If the parties are agreed that the children can be removed from the watch list, they can file Consent Orders with the Court to discharge the watch list order.
Getting permission to remove children from travel watch lists can be tricky. In all circumstances, I would recommend you obtain legal advice about your situation.
Scenario 4: You have the passports and your orders and/or parenting plan allows you to take the children on overseas holidays providing you met certain conditions (usually providing a certain period of notice and a copy of the itinerary, contact numbers when away etc), but the other parent threatens to stop you going.
Providing you have met the criteria you should be right to go. My advice is to have a copy of your orders and/or parenting plan with you and copy of the documents where you met the criteria with you, just in case the other parent turns up at the airport and makes a fuss. As the Australian Federal Police are responsible for security at international airports, having the documents with you to be able to show them might make matters easier.
The other parent might file Court proceedings seeking to get orders stopping you from leaving with the children. They might alternatively, withhold the children from you. This may leave you rushing to court to get a recovery order for the children and hoping you can get a listing before you are scheduled to leave. You may need to file a Contravention Application for breach of orders.
If you think the other parent might cause issues, you may wish to try and defuse the situation before it escalates and organise Family Dispute Resolution to try and resolve the issues the other parent has with the holiday. You know the other parent, are they are bluff and bluster? Or will they carry though?
This one is a bit of a judgment call as to what you should do. If you have complied with the orders everything should be fine, however, if you are served with court documents by the other parent you need to obtain legal advice as soon as possible.
With Christmas just over 2 months away, you may be thinking you have plenty of time to work out the agreement for Christmas, however the Courts in Australia which deal with family law matters have a cut-off date for dealing with arrangements for Christmas and the school holiday period. While this is generally in early November, we recommend that you do not leave it until the last minute as there are additional steps you need to take to make sure you have approval to take the children out of the country before then.
If your arrangements for Christmas Day or the Christmas school holidays are in doubt or in dispute, call our office today for your 45-minute free consultation and make sure that you’re on the right path.
The first 45 minutes of your initial family law consult is free.
The contents of this publication are not legal advice to anybody who receives it and should not be treated as legal advice. You should not take any action following reading this publication without legal advice concerning its application or relevance to your own circumstances.
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