Travelling with Children Overseas where Court Orders are in Force

Background

What could be the harm in taking your children on a well-earned holiday? The answer to that may depend on whether the children are the subjects of Family Court proceedings or parenting orders and you are planning a trip outside Australia.

Parents need to be aware that, where a child or children are subject to proceedings under the Family Law Act 1975, then there are a number of matters they should consider before travelling abroad with their children or they potentially risk imprisonment.

The Family Law Act sets out strict requirements for travelling overseas where orders are in force or proceedings are in progress. When planning a holiday with children in such circumstances, it is imperative to keep in mind that under section 65Y of the Family Act 1975, parties to proceedings must not take or send a child, who is subject of proceedings, outside of Australia unless certain conditions are adhered to.

Where there are pending proceedings or orders made in relation to children, legal advice should be sought before leaving Australia to ensure that the requirements of the Act are fully complied with, so that no offence, however “innocently”, is committed.

Key Issues

The key issue is that of potential international child abduction. Section 65Y(1) of the Family Act 1975 stipulates that if:

“a parenting order ... is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party must not take or send the child concerned from Australia except as permitted by subsection (2).”

A similar obligation exists if proceedings of a parenting order are pending (section 65Z). A breach of either of these sections is an offence that attracts a penalty of three years’ imprisonment.

The removal is permitted if the written consent of all the relevant parties is obtained or the court orders otherwise: section 65Y(2) and section 65Z(2).

Australia is also a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, having ratified the Convention in 1986 when the federal Parliament enacted the Family Law (Child Abduction Convention) Regulations. If a child is taken overseas without the consent of the non-travelling parent or the permission of the court (irrespective of whether a parenting order exists) the Convention may apply. The Convention applies to member countries (currently 95 in number) and normally requires “abducted” children to be returned to the home jurisdiction (“habitual residence”) so that the home court can determine the matter.

Sullivan v Tyler & Another (2016) is a cautionary tale with regard to these provisions. Orders were made prohibiting a mother from taking her child overseas. Despite this, the mother took her daughter abroad on holiday. The father made an application to the court that made the orders, while the mother and child were still away, that provided that the child should live with the father and that the mother’s name be posted on the Federal Police Airport Watch List. A warrant was issued for the mother’s arrest for her offence under section 65Y. The mother was arrested while still abroad and detained in prison. The child was placed in the care of the authorities abroad. The child was subsequently returned to Australia and her father. Following extradition to Australia, the mother faced charges. In the event, she was treated leniently (a good behaviour bond), given the circumstances, but the case does highlight the importance of the awareness of section 65.

What does it mean?

It is imperative, therefore, to be aware that for parents of children, subject to court proceedings or parenting orders under the Family Law Act, there are a number of matters they should consider before travelling overseas, even if for a relatively short holiday. What can be done to avoid problems and the risk of a prison sentence?

Clearly awareness and planning ahead is essential. When negotiating parenting orders, many people would include provisions about the ability of either parent to travel overseas with their children. But where orders exist and do not contain anything specific, section 65Y requires the prior written consent of the other parent or guardian. When considering taking children on holiday, it is important not to forget to make an appropriate application or to leave making an application until the last minute. It is necessary to consider the time it will take for the Family Court to list the application for a hearing.

However difficult the relationship, the non-travelling parent should be advised of the plans, itinerary, contact details, insurance and arrangements for communication with the child while away. Plans should be reasonable as to timing and destination.

If obtaining consent proves problematic, legal advice should be sought without delay as an application may need to be filed with the court to obtain permission for the child or children to travel and this process can take some months.

Determining an application, the Court will consider the proposed country to be visited (for example, if it is subject to travel warnings), and connections in Australia indicative that there is every intention of returning to Australia at the conclusion of the trip.

On the other hand, if you are concerned that an ex-partner may be intending to travel overseas without your permission, either on holiday or more permanently, it would be prudent to seek urgent legal support.

There may also be consequences for a parenting application if the Court considers a party has scant regard for their legal obligations or for the necessity that the child’s other parent needs to be consulted before taking a child out of the country.

Contact our Family Law Solicitors Surry Hills, Sydney

Szabo & Associates, Solicitors, can provide you with expert advice and assist with preparing the necessary consent or applying for a Court order if necessary. The firm’s Family Law experts can provide advice on a wide range of family law matters. Please call us on (02) 9281-5088 or complete our online contact form.