16 Apr 2019

Written by Rachel Pocock (Solicitor) and Simon Creek (Managing Director & Special Counsel)

With Easter School Holidays fast approaching, we have created a guide for separated parents seeking to travel overseas with their children.

Are you separated but don’t have any parenting orders?

Without any parenting orders, both you and your partner are at liberty to take the children on overseas holidays. We recommend both parents agree to this.

Does your child have a passport?

If you are taking the children overseas, they will need a passport. If your child doesn’t have one, the other parent will have to sign a passport application.

If the passport application is not signed by your partner, you can make a written request to the Minister for special circumstances. If this request for special circumstances is not accepted, you may have to apply to the Family Court for an Order which will allow for overseas travel.

If there are parenting Orders in place

If you have Family Court parenting orders in place or an application is currently in the Family Court, you cannot take the children on an overseas trip without permission from the Court or the written agreement of the other party.

If you make a court application for overseas travel, the Court will be required to consider what is in the best interests of the child. As is the case of Kuebler [1978], the Court will also consider:

  • The length of your proposed visit;
  • The effect on the child from not seeing the other parent;
  • Any threat to the child’s welfare by the proposed trip; and .

When making an application to the Family Court, consider that the Court may question the following:

  1. The details of the proposed travel, including an itinerary;
  2. The immigration status of the people travelling;
  3. What link you have to Australia;
  4. Whether the country being visited is a member of the Hague convention, or if any travel warnings are issued against that country;
  5. Whether you are willing to provide an undertaking to the Court to pay damages; and/or
  6. Any other information relevant.

If you need any assistance, we have experienced lawyers at HHG Legal Group who can assist you with these family matters. Please contact HHG Legal Group’s Family Law team on 1800 609 945 for assistance.

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