International travel with children is a fairly straight forward thing to do these days, however when it comes to separated parents it can become very complex.
The following is a journal article by Kym-Marie Bush, a Family Law solicitor at Quinn & Scattini –
Ordinarily international travel with children is straightforward – decide where you are going, when, book a ticket and travel. However, for those in family law disputes, it’s not that straightforward. Sometimes a parent won’t agree to your travel plans or there is an Airport Watchlist Order in place. Sometimes a parent won’t sign the passport application. What then?
For a parent looking to travel overseas, you will need to turn your mind to the likes of the following:
- where am I going to – what is the travel warning for this country;
- why am I going – is it holiday, is it business, is it for some other reason;
- when am I going – are the travel plans going to impact upon arrangements for the child to see the other parent;
- how long am I going for;
- will the travel affect the relationship between the child and the other parent;
- what are the contact arrangements whilst I am away.
When a court considers whether it will allow a child to travel overseas, its overriding concern, as with all orders, is whether the travel is in the child’s best interests. The court will look at the dynamics of the family situation, why the travel is occurring, what the prospects are of the parent returning. Whether the country being travelled to is a Hague Convention country is also a significant factor. The Hague Convention, to which Australia is a signatory, sets out the principles for international relocation/return of children. The countries that are signed to this Convention have a system in place which recognizes the country of habitual residence of the child.
Where the country is not a party to the Hague Convention, the court might order that a surety be paid – this is an amount which is designed to be forfeited if the travelling parent does not return. A recent case of Raycliff & Nilssen (No.2)  FCCA 1810 required the mother post a $25,000 surety as she was travelling to a non-Convention country (the country was not identified). The Court also ordered the mother to obtain comprehensive travel insurance for the child.
Other factors to weigh up are:
- what will the impact be upon the relationship between the child and the non-travelling parent – what is the relationship now, how long is the travel, how will that impact, how often does the child see the other parent, can “makeup” time be arranged;
- what are the bona fides of the parents – is this a genuine trip from which the child will receive some benefit such as a holiday or connection to the language, cuisine and culture of the heritage of their parent;
- are there any threats to the welfare of the child at the proposed destination – what is the infrastructure, are there threats of terrorism and are they likely to be acted upon – e.g. Iran, Philippines, Indonesia;
- will the promise to return be honoured;
- what are the travelling parent’s ties to Australia – do they own their own property, are they an Australian citizen, what is their work;
- what are the motives not to return.
In the earlier hearings involved in the matter of Raycliff the court had been required to look at the cultural aspects, education and financial situation of the parents, age difference (30 years), the diametrically opposed backgrounds of the parents, the unilateral relocation of the mother and the nature of the household as well as how settled each parent was in the culture of Australia as they were both immigrants. Together with this was the understanding of language, communication between the parties and domestic violence.
All of these factors have a place in determining whether or not travel should occur and the Court is called upon to decide the matter.
Ordinarily, a passport can only be issued where the persons having parental responsibility for the child consent to the travel or there is an order of the Court allowing such travel. The Australian Passports Act 2005 sets this out. If a parent refuses to sign documentation, the Court can authorize the other parent to sign in their place. Where grandparents have the care of the child, the Court may order the grandparent to sign in the parent’s place.
Added to this, where there have been past court proceedings, a (Airport) Watchlist Order may have been issued. This Order notifies the Australian Federal Police, Customs and Immigration that there is a ban on the child travelling out of the country. You could find yourself stuck at the international airport and the child is not allowed to travel with you. If you are concerned about the existence of an order there is a Family Law Watchlist Enquiry Form which can be lodged with the Australian Federal Police.
The Watchlist Order can only be lifted or suspended where there is an order of the Court or both parties agree. To remove the child’s name from the list, there must be a Court order. It is helpful, where you have been involved in litigation in the past, to check over the Orders to see whether there is a Watchlist Order in place. If there is, you won’t be able to exit the country without first addressing this issue. If in doubt, then make enquiries.
So, before you travel, remember to obtain the approval of the other party for the travel to occur and the issue of the passport for the child. Check also whether there is a Watchlist Order in place. If there are objections to your travel, you can file an Application and Affidavit with the Federal Circuit Court of Australia, outlining the above factors. Each case is considered on its own merit. Be prepared to provide a surety if you are travelling to a non-Convention country and to provide details of your travel, contact number while your away and flight itinerary.