The Christmas holidays are often an opportunity for people to spend time away with families and friends. If you are a parent with a pending family law matter in court and you want to take your child abroad during the school holidays, there are a few things you should be aware of.
Children are not permitted to travel overseas without the consent of both parents, or anyone with parental responsibility, when parenting proceedings are active in the Family Law Courts.
The unauthorised removal of a child from Australia, or the attempt to do so, carries a penalty of up to three years imprisonment.
Absent consent, you can apply for a court order seeking permission to take the child overseas. However, if you wish to do so, you should be mindful of court delays when considering when to file your application. Ideally, you would file at least 6 weeks prior to your departure date.
When assessing such an application, the Court will assess the risks of the child not returning to Australia. The Court may require you to put up a sum of cash as financial security which will you forgo if the child does not return to Australia in compliance with the orders. Ultimately, if the Court deems the travel to be in the best interests of the child, it will allow the child to travel.
What if the other parent travels overseas and does not return your child?
You may have heard of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). This is an international agreement that provides a process for assistance if a child has been abducted by a parent and taken overseas. The Convention provides a legal framework through which a parent can seek to have their child returned to their home country. Australia is a signatory to the Convention, however, not all countries are signatories. An application for the return of a child pursuant to the Convention can only be made to or from a country that has signed the Convention.
What if I am concerned that my child may be taken from Australia without my consent? If your child’s name is on the Family Law Watch List, an alert will be sent to the airport/port authorities and the child should be intercepted at the planned point of departure from Australia.
To have a child’s name placed on the Family Law Watch List requires a court order.
If you are concerned that that your child may be taken from the from the country without your permission, you should seek legal advice from an experienced family lawyer as soon as possible.
Over the Christmas period, most regional family court registries, including Newcastle, are closed from 25 December 2018 – 7 January 2019. Metropolitan court registries stay open throughout this time, with minimal staff. At Turnbull Hill Lawyers, our office will also remain open throughout the holiday period, with the exception of public holidays.
If you need to make an urgent application for your child to be placed on the Family Law Watch List, there are mechanisms available and people to help.