OVERSEAS TRAVEL BY A CHILD

The Family Courts are often called upon to decide whether children may travel overseas with one of their parents.  If you need advice or applying for or opposing overseas travel call us for our expert advice.

An Overseas Travel case

One of our clients needed us to apply to court to oppose the mother taking their child overseas.

The Court often prevents a child from travelling overseas from Australia. We recently represented a father whose child was prevented by a Court Order from travelling outside of Australia “without the consent in writing of both parents”.  The Mother in this case wanted to travel to United Kingdom with the child to visit family, however, the Father was concerned that the child would not be returned to Australia. We were able to prove to the Court that the Mother had no ties in Australia, she had only lived in Australia for a short period of time and she had unstable living arrangements and no permanent work. The Judge was not satisfied that the child would be returned to Australia and made a Court Order which we registered with the Australian Federal Police (called a PACE Alert) which meant that the child would not be permitted to pass through immigration control to leave Australia. As a result the child was prevented from travelling out of Australia until this PACE Alert had been removed.

The Court can permit a child to travel overseas from Australia and in considering whether this should occur, the Judge will consider the following factors: –length of the proposed overseas stay;

• bona fides of the request for the child to travel overseas;
• effects on the child of any deprivation of spending time with the parent not travelling with the child;
• any threat to the welfare of the child by circumstances of the proposed environment where the child will be travelling (such as a Third World country or Civil War);
• whether or not the child will be returned to Australia.

A few months later the Mother again applied to the Court to travel overseas with the child, but this time for the purposes of taking the child with her to attend a funeral in the United Kingdom. Again, the Judge was not convinced that the Mother’s promise to return the child to Australia would be honored. We were able to present a case to the Court to show that the circumstances considered by the Judge previously had not changed as the Mother did not have any real ties with Australia and as a result there was a risk that she would not return the child to Australia and that it was in the best interests of the child to continue to spend regular and consistent time with the Father which would not occur if the child travelled overseas for the length of time or if the child did not return to Australia.