Are You Prepared?
By Marie Fedorov – Founder of FEDOROV Family Lawyers and Family Mediation Station
It’s that time of year again – before we know it, Easter and all its festivities will be upon us. This special time can be really hard for parents who have separated.
Like many Australians you may be planning to travel overseas with your children, but have you considered the legal ramifications of doing so? (Separated Parents)
What many people don’t know is that there are actually laws preventing people from taking or sending their children overseas for any reason if there are parenting Orders in place – even if those parenting Orders are Consent Orders.
Unless the parenting Order specifically provides for overseas travel, the law states that you cannot take or send your children outside of Australia unless the other parent agrees.
If you were to take your children overseas without the consent of the other parent, they could make an application to the Federal Circuit Court to have you and the children brought back.
Not only would this ruin your Easter plans with your children, you can also have to go to court again or even be sent to jail for three years!
So much time would be lost with your children over a simple matter of taking them overseas for the holidays.
It is therefore critical for separating parents to consult a family lawyer and have them look over any parenting plan or parenting Consent Order before they sign it. (Separated Parents)
If parents are amicable and can agree to the overseas travel there will be no issue, but often that’s not the case and obtaining the other parents’ consent for overseas travel (each and every time you wish to go on a trip) may prove difficult.
If you can’t agree, you will need to apply to the court for permission to take them overseas. The court may allow them to travel overseas if it believes such action would be in the best interests of the child or children. The court assesses these matters very closely and will consider the risk of the children not returning to Australia. In those situations, the court may impose conditions, such as paying a security, to ensure that the children are returned to Australia.
Naturally, it is not possible to take a child overseas if they don’t have a valid passport. If you child doesn’t have a passport, you must have the application signed by both parents. It goes both ways - if you don’t want the other parent to take the children overseas, you can refuse to sign the passport application. (Separated Parents)
That said, it is possible to apply to the court to have a passport issued if the other parent won’t sign the application and you think you’ve made a reasonable request in the best interests of your child.
If you are worried that the other parent has already applied for a passport for your child, it is possible to contact the Passports Office to ask that your child’s name is added to a Federal Police Watchlist. This list is valid for up to 12 months and you can make the request directly, as long as you have filed a court application asking for Federal Police Watchlist Orders.
It is imperative you have your child’s details on the list if you are at all concerned to prevent them from travelling. The Passport Office will contact you to discuss the application if the other parent makes an application without your agreement. It should be noted that even if an alert is in place the passport could still be used, and of course, if your children can assess a foreign passport, they may still be able to travel using that document. Having your children’s names on the Federal Police Watchlist will alert police when your child’s passport is used to travel and they will attend the airport to prevent the child from leaving the country.
There are laws about moving children, finding missing children, and recovering (returning) children from overseas. Some of these laws are complicated and you may need to take urgent action.
Australia has agreements with many other countries to prevent children being wrongfully removed from the country where they usually live. If they’ve been taken overseas or you think they’re about to be taken overseas without your consent, get urgent legal advice and report it to the police.
If you know for a fact that your children have been taken overseas without your consent, in addition to contacting your lawyer and the police, you can contact the International Social Service (ISS) Australia for urgent legal advice.
The ISS is an Australian charity that gives free advice and support to families affected by international child abduction.
The most important message - if you are separated from your spouse or defacto partner and have children, talk to your lawyer to ensure that your and your children’s interests are protected.
Disclaimer This article provides general information and does not constitute legal advice. It is always important to seek professional legal advice.
