Attwood Marshall Lawyers Family Law Associate Laura Dolan explains the legal considerations that apply when separated parents want to travel with their children, and what steps to take to avoid a dispute before it starts.
As school holidays approach, travel plans tend to move to the top of the priority list. For separated parents, what should be an exciting time can quickly become a source of conflict. And unfortunately, misunderstandings about what parents can and can’t do often make things worse.
Whether it’s a weekend away interstate, a family holiday overseas, or a visit to relatives, here is what separated parents need to understand before making any travel arrangements.
Do you need permission from the other parent when travelling with children after separation?
Many parents assume that because the children are in their care at the time, or because they share parental responsibility, they can make travel decisions independently. The reality can be more complicated.
The starting point is to refer to any parenting orders or parenting plans, if these are in place. Many parenting orders specifically address travel – requiring advance notice, itinerary details, or written consent before overseas travel can take place. In some cases, the orders may expressly permit certain types of travel. In others, they may prohibit travel without agreement.
A common trap for separated parents is assuming that if their parenting orders do not specifically restrict travel, they can simply book the trip and go. However, even where orders are silent on travel, parents should carefully consider the effect the proposed travel may have on the other parent’s time with the child and the child’s ongoing relationship with that parent. In many cases, obtaining the other parent’s consent remains the prudent course.
Domestic travel vs. international travel
Australian family law treats domestic and international travel quite differently.
Parents generally have more flexibility when travelling within Australia. For example, a parent taking their child on a holiday during their allocated parenting time may not need formal permission from the other parent. However, it is sensible to provide the other parent with all the details of your travel – including dates you will be away, accommodation arrangements, and emergency contact information. Open communication is often the best route, preventing disputes before they arise.
International travel is where things become significantly more complicated. Travelling overseas involves additional considerations because of the risk that the travelling parent may not return the child to Australia. As a result, parenting orders often include specific provisions dealing with overseas travel.
If court proceedings have already commenced, parents should exercise particular caution before making overseas travel arrangements. There are circumstances where removing a child from Australia in breach of court orders or other legal restrictions can have serious consequences, such as amounting to a criminal offence.
Obtaining legal advice before travelling internationally during family law proceedings is extremely important. If there is any disagreement about overseas travel, speak to a qualified family lawyer before booking flights or making financial commitments.
What if the other parent refuses travel?
If agreement cannot be reached, parents may need to explore dispute resolution options such as negotiation through solicitors or mediation. In some circumstances, an application to the Court may be necessary. When determining whether overseas travel should be permitted, the Court will consider the child’s best interests, including purpose of the trip, the impact of the child’s relationship with the other parent, length of proposed travel and whether there is any risk that the child may not be returned to Australia.
The earlier travel plans are raised, the greater opportunity to address concerns and avoid costly last-minute disputes.
Which parent gets to hold onto the child’s passport?
Often, it’s the passport that causes arguments. I’ve seen situations where flights have been booked, accommodation paid for, and bags packed, and the only thing preventing the holiday from going ahead was a disagreement about a passport. Sorting this out well in advance, ideally in a written agreement, avoids a last-minute crisis.
There is no automatic rule about which parent keeps a child’s passport. Some parents agree on who keeps them, some choose to store it in a neutral location, while others exchange it before and after overseas travel. The best arrangement is usually the one that minimises conflict and provides certainty for both parents.
Applying for a child’s passport without the other parent’s consent is another question that frequently comes up. In most situations, both parents with parental responsibility must give their consent for passport applications. This is to help protect children from international child abduction and unauthorised overseas travel.
In special circumstances, one parent may be able to apply without the other parent’s consent. But these situations can be complex. Obtaining legal advice early is essential.
What if you’re worried the other parent won’t bring the child home?
The family law system recognises that international child abduction can have serious consequences for the children and parents.
Whenever international travel is on the table, it is worth understanding the basics of the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention is an international agreement between participating countries that facilitates the return of children who have been wrongfully removed from, or retained outside of, their country of habitual residence. It is designed to discourage international child abduction and help ensure that parenting disputes are determined in the appropriate country.
Two important caveats apply. Not every country is a party to the Hague Convention. And even where a country is a member, international recovery proceedings can still be stressful, costly, and time-consuming.
Depending on the circumstances, a parent may seek Court orders preventing a child from leaving Australia. In appropriate cases, a child’s name may be also placed on the Australian Federal Police Family Law Watchlist, which can assist in preventing international travel while legal issues are being resolved.
Parents who have concerns about a child being removed from Australia without their consent should seek legal advice as soon as possible, as delays can significantly reduce the options available.
Practical steps to avoid a dispute when travelling with children after separation
Many travel disputes can be avoided altogether if the parties plan properly, communicate with each other clearly, and understand the legal requirements of their particular situation.
Before making any arrangements, the following steps are worth considering:
- Always check any parenting orders or parenting plans before making travel arrangements. Review them carefully for any provisions dealing with travel, consent requirements, or passport arrangements.
- Don’t leave passport issues until the last minute. If there is any uncertainty about where the child’s passport is held, or whether both parents will consent to its use, address this well in advance.
- Communicate travel plans early and provide clear information wherever possible – where you are going, when, where the children will be staying, and how they can be reached. The earlier you raise it, the more time there is to resolve any concerns.
- And if there is any disagreement about overseas travel, obtain legal advice before booking flights or making any financial commitments.
Attwood Marshall Lawyers – helping families navigate parenting matters
Our family law team practise exclusively in this complex area of law and are experienced in handling travel disputes, parenting arrangements, and all matters involving children after separation.
In challenging family law situations, we understand the gravity of your circumstances. Having a skilled family lawyer by your side is essential for support and navigating the legal system.
If you need assistance, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au.
Our team is available across our offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
