The issue of overseas travel often arises in family law proceedings. Following the breakdown of a relationship, it is very common that one parent will refuse to give permission for their child to travel overseas or obtain an Australian passport. So, what can parents do in this situation?
Once there are parenting orders in place, it is an offence under the Family Law Act to take or send a child outside Australia without either the consent of both parents or a court order. If a parent contravenes this prohibition, they may face a prison term of up to three years.
Where agreement cannot be reached, a parent may apply to the court for permission to take the child overseas for a period of time to holiday, or perhaps to visit family. In deciding whether to grant such an order, the courts are primarily concerned with the best interests of the child. A number of factors may be taken into account, including:
- details and length of the proposed overseas trip;
- any travel alerts for the proposed destination, and whether or not it is a signatory to the Hague Child Abduction Convention;
- stability of the removing parent’s family life in Australia, and any personal connections they have with the proposed destination;
- economic stability of the removing parent in Australia;
- age of the child;
- level of conflict between the parents and their history of compliance with orders;
- the effect on the child if the order is denied; and
- the risk that the child may not be returned to Australia.
A court may impose conditions on an order allowing a child to travel overseas where it is concerned that the child may not be returned. This can include ordering the travelling parent to pay security, which the other parent can use on legal fees and travel costs if the child is not returned.
Obtaining a passport
According to the Australian Passports Act, in order for a child to be granted an Australian passport both parents are required to sign the application. This creates difficulties where one parent cannot be located, or refuses to consent to the application.
Under the Passports Act, a passport may be issued without the consent of both parents if the Minister is satisfied of the existence of special circumstances where the physical or physiological welfare of the child would be adversely affected if prevented from travelling overseas, and where it is not possible to contact both parents.
If the Minister refuses to exercise this discretion, or the passport application is urgent, a parent can apply to the court for an order that the passport be granted without the consent of both parents. Like any parenting order, this will be decided with the primary concern of the best interests of the child.