A trip overseas when the other parent doesn’t want your child to go…
For those who haven’t separated, the process of taking a child overseas is pretty straightforward, you get a passport for the child, you buy a ticket and then get on the plane.
For those parents who have separated, the whole process can be an enormous saga. Here are some easy steps to try and make it more straightforward:
- Is there any court order in place?Is there any court order in place? If there is a court order, it might cover who has parental responsibility. If the order provides for shared parental responsibility then taking the child overseas without the consent of the other party or a further court order will be a breach of the order. If the order says that the child can spend time with the other parent then taking the child overseas even if you have sole parental responsibility under the order may be an offence under the Family Law Act for which you could be jailed.
- See if you can obtain agreement from the other parentSee if you can obtain agreement from the other parent to having a passport issue for your child (and they’ll have to fill out the form for that) and for the child to travel overseas. It’s not enough just to get a passport. There must also be either a court order or written consent of the other parent to the child going overseas. The written consent must be dated and signed by the other parent, their signature needs to be endorsed by someone who can witness a statutory declaration. The witness must state on that document (and date and sign the statement):(a) The person is satisfied about the identity of the person signing the consent; and(b) The consent was signed in the persons presence.
- Is the child on the watch list?Is the child on the watch list? The Australian Federal Police maintain an airport watch list which will mean that the child cannot leave Australia whilst on the watch list. When the child gets to the migration barrier at any of the international airports (or ports if going by sea) the child will be prevented from leaving. If the child is on the watch list an application will need to be made to court to remove the child from the watch list (if the other parent doesn’t agree).
- Dispensing with the other parent’s consent with Passports AustraliaDispensing with the other parent’s consent with Passports Australia. It can be possible under the Australian Passports Act to have an official of Passports Australia dispense with the consent of the other parent to the passport application. This should only happen after you have obtained legal advice first so you’re not breaching any order. If you tell lies to Passports Australia, for example you claim that you don’t know who the father of the child is (because he’s not named on the birth certificate) then you commit a serious criminal offence for which you could be jailed. I once acted for a client after she had done exactly that. She was very lucky not to have been jailed.Because of this possibility of abuse, even though Passport Australia Officers can dispense with the signature of the other parent typically they won’t do so and instead will require you to make application to the court.
- Going to CourtGoing to Court. Normally you need a section 60I certificate from a family dispute resolution practitioner or mediator before you can get to court. There are exceptions in cases involving domestic violence or sexual abuse allegations, or if a parent can’t get to mediation or in circumstance s or urgency. Obtaining a passport for a child and allowing the child to travel overseas normally will be a circumstance of urgency. There are two warning signs here. One – don’t leave it too late. Too often I have seen parents leave to only a couple of weeks before travel (or even a day or so before travel) and discover that the Federal Circuit Court is far too busy and can’t hear the application. The result? The planned trip doesn’t happen or the parent goes alone. The other warning sign is if planned far enough out a court official might reject the application because it’s not urgent enough and a section 60I certificate is need first. This comes back to the basic point of this article: get good legal advice as quickly as possible on this point.
- On bringing your application the courtOn bringing your application the court will want to know where the child is going including full itinerary and most importantly that the child will be coming back. Sometimes when there is a risk of flight a parent will be required to pay a bond. This is particularly the case if the parent has made threats to abduct the child or if travel is to a country in which there is a risk that the child won’t return, for example a country that is not a signatory to the Hague Child Abduction Convention.The bond is not a cure-all. For example while a bond might be put up so as to pay for a lawyer and others to be able to retrieve the child from the overseas country, if dad proposes for example that he wants to take the child to visit family members in Pakistan and he decides that he’s going to keep the child there, a bond almost certainly won’t enable the child to come back. I once acted for a mother who threatened previously to abduct her child to the Philippines and not return. The Philippines is a non-Hague Convention country. My client through family members put up a bond of $100,000 which would have been automatically forfeited to the father if my client didn’t return her daughter on time. The court made the order for the child to go subject to the bond being available. The child returned on time!
Get good legal advice as quickly as possible when contemplating travelling overseas if you believe that you are going to strike trouble with the other parent or you may be in breach of an order. The sooner you get that good legal advice the more likely you will sort out the problem as quickly, cheaply and stress free as possible.
Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He was admitted in 1987 as a Solicitor and has been an Accredited Family Law Specialist since 1996.