Travelling overseas with a child - do I need the other parent's consent?
Taking your child on an international adventure can be an exciting prospect, but it's important to understand the legalities involved if you're a parent. If there are no parenting orders in place, you can generally travel within Australia or abroad with your child, as long as you have the other parent's consent.
However, if there are existing parenting orders, you must adhere to their conditions. Should these orders not explicitly cover travel provisions, you may find yourself needing to seek a variation order from the court to permit your child's overseas travel.
It is important to note that unauthorised removal of a child from Australia carries a criminal penalty.
What if one or both parents do not consent to the child having a passport?
To travel outside of Australia, a child needs a passport.
For any parent planning to travel overseas, obtaining the consent of the other person can be a challenge. It's essential to communicate your travel plans clearly and give the other parent ample time to consider and process the information. Open and respectful communication can help make this process smoother for everyone involved.
If consent of the other person who has parental responsibility is not given, there are circumstances where a parent can apply to the Department of Foreign Affairs and Trade (DFAT) for permission to travel and may succeed without the other parent's consent in circumstances where:
- Special circumstances exist that justify the need for the child to travel;
- The psychical or psychological welfare of the child would be adversely affected if the child cannot travel internationally;
- The child urgently needs to travel internationally because of a family crisis;
- The other person who has parental responsibility for the child cannot be contacted within a reasonable period prior to travel; and
- The child departed Australia less than 12 months prior to the application and DFAT considers the child requires a passport to return.
What can I do if my special circumstances Application is refused?
If your special circumstances application for an Australian passport is not approved, don't worry-there are still steps you can take to address this situation.
Mediation
Consider mediation or family dispute resolution. This option can be particularly helpful if you and the other parent have disagreements beyond the passport application. Mediation allows you to discuss various issues, such as overseas travel and living arrangements, and work towards a mutually agreed decision. The agreement can then be formalised into consent orders.
Filing an Initiating Application
If Mediation doesn't resolve the issue, you can file an Initiating Application with the Federal Circuit and Family Court of Australia. This process involves detailing the specific orders you are requesting and submitting an affidavit that outlines all relevant facts to support your case.
As part of your application, it's important to request an order that allows one parent to apply for and obtain a passport for your child.
It is crucial to be aware of your rights and obligations if you are planning on travelling with your children. For personalised advice and assistance, call us at (02) 4647 2968 to schedule a consultation with one of our family law solicitors.
