Relevant Provisions in the Family Law Act

If you have parenting orders and want to travel overseas with your children, you should confirm a few things before making any plans, otherwise you may be subject to criminal charges. Section 65Y of the Family Law Act 1975 (‘Act’) provides that taking or sending a child outside Australia is an offence if that child is subject to a parenting order dealing with:

  • who the child lives with;
  • how much time the child spends with each parent and with other people, such as grandparents;
  • how the child communicates with a parent they do not live with, or other people;
  • the allocation of parental responsibility.

Similarly, taking or sending a child from Australia constitutes an offence if there are proceedings before the Court for the making of a parenting order for the matters referred to above pursuant to section 65Z of the Act.

If there is an unauthorised removal of children from Australia where a parenting order is in place, the penalty for failing to comply with a Parenting Order is imprisonment for three years (Division 13A of Part VII in the Family Law Act 1975).

Exceptions to the Provisions

There are, however, exceptions to the above provisions where the Act allows a child to be taken from Australia if, prior to the international travel, there is:

  1. the express written consent of each party; or
  2. a Court Order providing for the overseas travel has been made.

This means that, if you have a parenting order or are a party to Court proceedings for a parenting order, any international travel involving a child subject to that order, or those proceedings must not take place unless you have satisfied one of the above conditions.

If you fail to reach agreement and receive the express written consent of each party, then the only way to have children to travel overseas, is to apply to the Court for Orders.

Apply to the Court

If an existing court order no longer reflects current arrangements for a child, you may wish to have the orders varied. A parenting order should also be varied if you or the other party cannot reasonably comply with the order. If you and the other party wish to change the arrangements and enter into a parenting plan or apply for consent orders that vary the existing orders, it is very important you seek qualified, independent legal advice. Our expert Family Lawyers can assist you understand your legal rights and obligations and explain how the law applies to your case.

Please note that a parenting plan is different from a parenting order. A parenting order is made by a court. A parenting plan is a written agreement between the parties that sets out parenting arrangements for children. It is worth noting that a Parenting Plan is not legally enforceable. However, a parenting order made by the court may be altered by a subsequent parenting plan made by the parents (s 64D of the Act).

Tips for Parenting Order Application

If you consider applying for a parenting order to the Court, it is important that your final parenting orders include provisions for international travel of your child or your children. These provisions may address issues such as whether it is required for all parties to consent to international travel and how much notice to be given to the other party.

In the case where there is a final parenting order that a child lives only with one party who has sole parental responsibility for that child, section 65Y still operates and both parents are required to consent to international travel of the child unless there are proper provisions permitting the party to arrange the international travel of the child in place. This highlights how important it is to have properly drafted orders prepared by qualified and independent Family Lawyers.

What happens if the parents can’t reach an agreement?

If the other parent does not agree to you travelling with the children overseas, you can attempt family dispute resolution or mediation. For example, you as the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. In most cases, the Court will consider the wishes and needs of the children and not the parents, to determine the best interest of the children to travel overseas.

In U v U (2002) 211 CLR 238, the courts held that although freedom of movement is a constitutional right for adults in Australia, this right does not surpass that of the children which means that the right of the child is not subordinate to the right to freedom of movement for adults.

What Happens if You Relocate your Children Without the Other Parent’s Permission?

Domestic Abduction

If one parent has not sought prior permission, the other parent can apply for a recovery order. The parent who applies for this order can have the assistance of federal and state police officers for the safe return of the children (s 67Q of the Act). An offending parent may be arrested, and their future parental rights will be changed through the recovery order.

International abduction and the Hague Convention

Australia is a party to the Hague Child Abduction Convention, so Australians are subject to a process of recovery from another country that is also party to this Convention. The objects of the Convention are:

  1. to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
  2. To ensure that the rights of custody and of access under the law of a Contracting State are effectively respected in other contracting States.

Contact Us

If you would like more information on how the Family Law Team at Genesis Edge can assist you, please call our National Hotline on 1300 559 888, or fill out the enquiry form here.