Apart from exceptional circumstances any parent wishing to take their child overseas should obtain the other parent’s consent. If there is a Parenting Order in place or there are pending proceedings in relation to parenting matters before the Family Court it is a Commonwealth offence to take a child overseas without the consent of the other parent.
If one parent refuses to allow the other to take the child overseas an application can be made to the Court for orders allowing the travel. In determining whether to allow a child to travel overseas the Court will consider what is in the child’s best interests. The Court may consider whether there is any risk that the child will not be returned to Australia. If there is a risk involved the Court can look at implementing safeguards to ensure the child returns.
Does the child have a passport?
Save for exceptional circumstances a child can only obtain a passport with the written consent of both parents. If consent cannot be obtained from one parent an order of the Court permitting the application for a passport will usually be needed.
Where there is concern that one parent may fraudulently apply for a passport for a child a “Child Alert Request” can be made to the Australian Passport Office. This warns the Australian Passport Office that one parent has not given consent for a passport to be issued for the child. The request will remain on the system for a maximum of 12 months (or until the child is 18 if a Court Order is provided in support). The request is not a complete guarantee that a passport will not be issued but it provides a safeguard to alert a parent if an application is made.
If a child already has a passport (or can obtain a foreign passport) the alert will not stop the child leaving the country.
Storing passports and Watchlist alerts
If a child already has a passport and a parent is concerned about the child leaving the country it is possible to seek that the passport be safely stored (for example by a solicitor).
A parent can also apply for an Order that a child’s name be placed on the Family Law Watchlist. The Australian Federal Police maintains a list of names and details of children on a “watch list” who are not permitted to travel overseas. If there is an attempt to take a “Watchlist” child from Australia the Federal Police will be immediately alerted and border security will not allow the child to leave without the specific consent of both parents or a further Court Order.
If a child is travelling overseas with one parent a check should be made that the country they are travelling to is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This is a treaty signed by Australia and other countries who have agreed to follow a procedure to ensure the fast return of children who have been wrongfully removed (or retained) from their country of habitual residence.
When a child is going or has gone overseas and a parent has concerns about their safety and/or return legal advice should be sought immediately from an accredited family law specialist.