Whether you have just separated or decided to separate, there are a few things you need to know before you start to plan an overseas Christmas vacation.

The process, and corresponding timeframes, of negotiating property settlements, parenting arrangements and divorce can be drawn-out and time consuming. There are also many legal consequences of making decisions to travel with your children without the consent of the other parent.

Many couples and parents think they can just “go to court” and their matter will be dealt with immediately, but lengthy delays are often the reality when you're dealing with the Family Court and Federal Circuit Court.

What does this mean for you?

You must have the necessary legal arrangements in place if you're planning to involve your children in your overseas holiday arrangements. If your children are the subject of Family Court proceedings or parenting orders made under the Family Law Act, you must not take them outside of Australia unless all parties to the parenting order have consented to the arrangement.

Even if your children are not subject to a parenting order, failure to obtain either the other parent’s consent or permission of the Court can have significant legal consequences. To take your children abroad without permission contravenes the Hague Convention on the Civil Aspects of International Child Abduction. Court proceedings may be brought to return the children to their country of “habitual residence”.

If consent cannot be obtained, you may seek an Order of the Court authorising the travel. Due to the lengthy delays being experienced in the Courts, an application to the Court should be made immediately.

The Family Courts may make Orders which provide for the following:

  • Travel restrictions to countries that are signatories to the The Hague Convention on the Civil Aspects of International Child Abduction;
  • Other specific countries as agreed;
  • Provision of a travel itinerary which includes flight details, accommodation details and contact numbers;
  • Provision for the retention of passports during periods of non-travel;
  • Payment of surety funds to a solicitors’ trust account that can be accessed by the non-travelling parent should the child not be returned to Australia; and
  • Telephone/Skype contact with the child for the non-travelling parent.