The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Can I take my children overseas?

One of the issues arising from separating parents is proposed overseas travel for a child or children of the relationship.

It may be that a parent wants to take the children with them on a holiday to Bali, to visit relatives in more distant parts of the world or alternatively an overseas school excursion opportunity arises.

If the child or children do not have Passports already, then this is the first issue that arises as in the absence of a Court Order as a Passport Application for a child will only be accepted if there is a jointly signed Application from both parents or legal guardians.

If one parent has obtained an Order for sole parental responsibility for a child — that is the responsibility for the long term decision making about the child — then a Passport can be issued on the Application of that parent alone.

Orders for sole parental responsibility are relatively uncommon. In the absence of a sole parental responsibility Order, the party seeking to have the child or children travel overseas can apply to a Family Law Act Court to seek an Order that a Passport be issued in circumstances when the other parent will not cooperate.

As with the vast majority of matters before the Court regarding children, a Judge must make a decision having regard to the best interests of the child as the paramount consideration. Precise details of the proposed trip including the purpose of the trip and the proposed travel itinerary is of great assistance. A Judge will want to be satisfied that the travel is permissible, appropriate, safe and that there is no genuine risk of the child staying overseas.

If the child or children already have Passports then in the absence of an agreement from the other parent, a Court Order is still required before overseas travel with the child or children is permitted. In fact, it is actually an offence to take a child out of the Commonwealth of Australia where that child is subject to a Court Order that doesn’t permit such travel.

In circumstances where one parent believes the other parent is about to remove the child from the Country then an urgent Application placing them on an Airport Watch List can be obtained.

While Court always remains an option, the best approach for a parent proposing overseas travel for a child is to make a detailed proposal to the child’s other parent as early in the piece as possible with a view to obtaining their written consent. Mediation is also a useful tool and it is in fact compulsory prior to going to court, subject to exceptions such as urgency.