In family law matters when one parent wishes to travel overseas with a child the situation arises frequently that the other parent objects. With Australia being a multicultural country, international travel for the purposes of holidays and visiting family are common. However, there are instances where a parent travels with a child, ostensibly for a holiday, and subsequently fails to return the child to Australia.
There may be good reasons why a parent may object to international travel even when there is no concern about an abduction in circumstances where, clearly, the purpose of the trip is a holiday. For example, if the intended destination is a dangerous place.
Restraining a Parent from overseas travel with a Child
Often if a parent suspects that the other parent is intending to travel without their consent, an urgent application is lodged with the Federal Circuit and Family Court of Australia seeking to restrain the other parent from taking a child out of the country. The Court takes such applications quite seriously and will regularly make urgent orders, sometimes on an “ex parte” basis (that is, in the absence of the other party), to restrain the removal of children from the country.
Once the Court makes such restraining Orders, the Court will then serve a copy with the Australian Federal Police and the children will be placed immediately in the “Family Law Watch List” accessible by officers from the Department of Immigration and Border Protection at every exit point around the country – Police and Family Law
That is a very effective tool to stop children being removed from Australia.
If urgent ‘ex parte’ orders are made, the Orders and other court documents are then served on the other party, and the matter will be adjourned to allow the other party to file material in reply and ultimately to be heard.
The parent who wishes to travel overseas with a child may be able to convince the Court and obtain orders to allow the trip to go ahead even against the wishes of the other parent. The Court, in those circumstances may impose certain conditions on the travelling parent as we discuss below.
May a child travel overseas against the wishes of one parent?
A Court may overrule a parent’s objection that a child travel overseas if the Court is satisfied that the child is likely to be safe and return safely to Australia.
The parent who wishes to travel may bring an application with the Federal Circuit and Family Court of Australia seeking orders to permit the child to travel. The Court may allow such an application if it is satisfied that; there is little risk to the safety of the child; and that the parent is likely to return to Australia with the child. Factors that the court considers when determining these matters include: the parent’s occupation and current employment, the assets held by the parent in Australia, the location of the extended family and so on.
What you can do if you propose overseas travel with your child, or if you seek to oppose such travel:
Raise the matter with the other parent in writing
Quite often a simple and exchange of letters or emails is sufficient to obtain consent.
Propose to enter into consent orders
Even when the other parent provides written consent as suggested above, sometimes circumstances change, and the consent is subsequently withdrawn at the last moment. To avoid such a situation, it is advisable to have consent orders entered into which reflect the agreement about a specific trip overseas or something more generic to the effect that one parent (or both) may from time-to-time travel with the child outside Australia after he/she complied with specific conditions.
What travel details are provided?
The party who is travelling with the child should generally provide full travel details, such as flights, accommodation and travel itineraries to the non-travelling parent. Reasonable notice should be also provided.
Make up time
In the event that the parent staying behind will miss on scheduled time with the child, say, during school holidays, the travelling parent should offer make up time to be made up during the same holidays or perhaps sometime in the future.
Seek A Court Order for Security or a Bond
The Court may make Orders for the payment of a security bond or a fixed monetary payment which must be paid and held as a surety designed to increase the likelihood that the child is returned to Australia by a certain date. This bond is generally paid into trust account of one of the parent’s solicitors. Some orders may require the non-travelling parent’s solicitors to hold the bond, whereas other others may require the travelling parent’s solicitors to hold the bond. Despite whose solicitors hold the bond, in any case the solicitors are legally not allowed to access these funds without appropriate authorisation; they will remain in the trust account until the funds are authorised to be released as below.
The orders that are made by the Court will specify the number of days, prior to the date of departure, by when the bond must be paid and the funds cleared.
The amount ordered to be paid will depend on the circumstances and risk associated with the proposed travel. Some bonds can be relatively low at $5,000 compared to others reaching $100,000. This bond is sometimes in the form of real estate.
The orders made will provide a date upon which the money is to be released and will specify where the money goes. In most cases, the money is to be released upon the child’s return to Australia, however, other conditions allow flexibility, taking into account unforeseen circumstances or allowing a small time period (7 days, for example) for a late return.
The release of the money can go one of two ways; it can be released to the travelling parent, provided they have returned the child in accordance with the orders, or it is provided to the non-travelling parent if the child is not returned.
If the child is not returned within a particular stipulated time frame, in accordance with the orders, the bond that has been paid is allocated to securing the return of the child by the non-travelling parent. The bond is generally reserved solely for travel costs, legal costs or other appropriate fees that are incurred by the non-travelling parent in seeking the return of the child to Australia.
If you are planning on travelling overseas with your child, or if your child’s other parent is travelling, our Family Law Team can assist you in ensuring the appropriate arrangements are in place prior to travel.
Further reading
elringtons lawyers regularly provide legal advice in relation to a range of Family Law matters. Please contact our Family Law Team for more information or to make an appointment call (02) 6206 1300
