With school having wrapped up for the year, the summer holidays are upon us. If you’re one of the lucky ones this might mean an overseas holiday for you and your children. Alternatively, you may be waving your goodbyes at the departure gate as your children and their other parent travel overseas.
However, where children are the subject of Family Court proceedings or parenting orders there are important steps that must be taken prior to overseas travel. We have alerted you here before as to the need to obtain the consent of the other parent or the permission of the Court if necessary. You can read that article here.
Should a child be taken overseas without the consent of the other parent or the permission of the Court (irrespective of whether a parenting order exists or not), the Hague Convention on the Civil Aspects of International Child Abduction may apply to the situation. The matters covered by the Convention have by and large been enacted into Australian law.
In circumstances of international child abduction, court proceedings may be brought pursuant to this international agreement for the return of the child to their country of “habitual residence”. Taking a child improperly out of the Country is also punishable by up to three years imprisonment.
For some time there has, however, been a loophole such that a person does not currently commit an offence if they obtain the necessary order or consent, but retain a child beyond the expiry of that order or consent. This legislative gap is set to close with the introduction of new sections 65YA and 65ZAA to the Family Law Act. These provisions would remedy the gap, and make it an offence to retain a child overseas beyond the date of return specified in the Court order or other parent’s consent.
Accompanying these changes are increased abilities for appointed persons to discover the whereabouts of a child who has been wrongly removed or retained through a location order.
These proposed amendments by the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 are set to have retrospective application.
This is good news, especially for parents who may be worried about the safe return of their children from an overseas visit. For parents travelling with their children internationally, the potential prison sentence provides a strong disincentive to extending their holiday beyond agreed or court ordered terms.
Our family lawyers are able to assist parents with all legal aspects of preparing to go overseas with children who are the subject of a parenting order, including negotiating such overseas travel with the other parent or parties to a parenting order, preparing necessary consent documents to reflect an agreement regarding overseas travel or with the preparation of a court application seeking the permission of the court for such overseas travel.
On the other side of the coin, if you have concerns that about your child being taken overseas without your consent, you should contact our team of family lawyers about the applications that may be made to the Court to prevent a child from leaving the country from any international air or sea port and/or an application to prevent a passport from issuing in a child’s name.