It’s no secret that Australians love to travel. Whether it’s journeying across Australia to see distant relatives or holidaying to countries around globe, travelling is often a positive, beneficial and foundational experience for adults and children alike.
In separated families, however, the issue of who is allowed to travel, where and when can be somewhat more fraught. In this brief guide, we will set out several key things for separated parents to keep in mind when considering travel arrangements, although it is important to remember that these only apply when travelling with children – adults travelling on their own are (barring other restrictions) allowed to go where they like.
Notice and Consent
A starting point for all travel plans should be, if possible, discussion with the other parent. Ideally, both parents should agree to and be aware of any travel that it is proposed children go on, and it will often be the case that separated parents agree on a kind of “tit-for-tat” – an agreement that the children go on one holiday with one parent, and another holiday at a later point with the other. Being able to reach a fair compromise or agreement is the best, fastest and cheapest way to resolve these kind of intermittent parenting issues, which will inevitably crop up from time to time, and is a hallmark of cooperative, child-focused parenting.
In almost all circumstances, the parent proposing the travel should provide adequate notice of the proposed trip to the non-travelling parent. This should include things like:
- Proposed travel dates;
- Itinerary or plane tickets;
- Where the children will be staying and with whom; and
- Contact details and how it’s proposed the non-travelling parents stay in touch with the child throughout the journey.
Travel within Australia
Broadly speaking, in the absence of Court orders there are no restrictions on either parent travelling within Australia. Parents should, of course, consider whether travel is in the best interests of their children, taking into account things like risks to safety, the time they will miss out on with the other parent, and missing out on school or important events. It also goes without saying that parents of children with Court orders in place will need to comply with the specific terms of those orders, which might include restrictions on domestic travel.
If a parenting matter has been filed with the Court, it is a crime for either parent to remove a child from Australia unless they have the written consent of the other parent or an order of the Court. Generally, a Court will not permit a child to be taken overseas if there is a reasonable concern that they will not be returned to Australia. Other countries may also have restrictions or requirements for children entering or leaving the country with only one parent.
In contested parenting matters, it is not unusual for the parent wanting to travel overseas to have to provide the other parent with a “deposit” or “bond”, with the idea being that this money can be used by the non-travelling parent to fund legal proceedings in the event that the child does not come home. A Court will also be more likely to allow travel if it is to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a process by which a parent can seek to have their child returned to their home country.
“Make up time”
It is not unusual when negotiating for one parent to travel with their children for that parent or the other parent to suggest (or demand) that the children spend additional “make up time” with the non-travelling parent on their return. This may take the form of additional time throughout the child’s regular time arrangement or (as mentioned above) permission to go on holiday with the other parent.
There is no strict legal requirement to provide “make up time” to a non-travelling parent, although unilaterally making arrangements which reduce the amount of time a child spends with their other parent will not be looked on favourably by the Court. It is also important to keep in mind that going on holidays already represents a significant disruption to a child’s routine, and that following this up by further disrupting a child’s usual day-to-day schedule with make up time may not be in the child’s best interests. This is especially true for younger children, who rely upon routine for a sense of safety and stability. As ever, it is important to remember that what matters is not that parenting arrangements be strictly “fair” to each parent, but what is in the best interests of the child.
Q: I think it would be beneficial for my children to travel. Can I force the other parent to contribute to the cost?
A: No. A separated parent does not have an obligation to fund the other parent’s travel with their children. This does not, however, stop parents reaching an informal agreement to this end.
Q: I want to apply for a passport for my child. Do I need the other parent’s consent?
A: Yes. Passport applications are strictly controlled and usually require the consent of all parties with parental responsibility. In the absence of Court orders, both parents have parental responsibility, and so both must give permission for a passport to be issued.
If the other parent consistently refuses to give their consent for a passport application, you can make a written application to the Department of Foreign Affairs and Trade to issue the passport due to “special circumstances”. However this will only be applicable in limited circumstances, and if your request for “special circumstances” is not granted you may need to make an application to the Court, which can be expensive and time-consuming.
Q: I’m worried my child is going to be taken overseas without my consent. What do I do?
A: If parenting proceedings have been started in the Federal Circuit and Family Court of Australia, you can apply to the Australian Federal Police to have your child placed on the Airport Watch List. Once a child is on the Airport Watch List they will be prevented by the AFP from leaving Australia. If proceedings are not on foot you will need to file proceedings so that you can apply to have your child placed on the Watch List, and should seek urgent legal advice.
If you are concerned that your child may be taken overseas imminently, you should contact the police on 000.
Q: What are the impacts of travel restrictions related to COVID-19?
A: As the COVID-19 situation, both in Australia and abroad, is continually changing, it is impossible to provide advice about restrictions which might apply when travelling to or from specific countries or states. It is important that travelling parents keep updated about any COVID‑19 travel restrictions, stay informed about any testing or quarantine obligations, and ensure that they and their children are vaccinated and otherwise comply with the recommended health guidelines.
Parenting matters involving travel, passports, overseas trips and relocation can be very complicated, and you should always seek legal advice specific to your circumstances. For assistance with these and other family law matters, contact the Hunt & Hunt family law team on (02) 9391 3000.
Article prepared by: Ben Keyworth, Sydney