Family Law Case Note: Can I take my children overseas if my ex-partner does not agree?
Author:
Anthi Balafas
Publish Date: July 20, 2012
Deciding to take the children on an overseas holiday where there is no Order permitting one parent to do so and the other parent refuses to agree to such a proposal can be a stressful experience for many parents.
If no agreement can be reached between the parents, the parent wishing to travel with the children overseas must apply to the Court for an Order permitting them to travel with the children overseas. The Court will make a determination as to whether the overseas travel proposed by the parent is appropriate for the children.
The Court takes into consideration a number of factors when assessing an overseas travel application. One of the most important considerations is whether the Court is satisfied that there is a real fear that the parent will not return the children to Australia. If such a concern exists, the Court will also consider whether the proposed destination which the parent wishes to take the children to is a signatory to the Hague Convention. The Hague Convention is an international agreement which many countries have become signatories to. Such an agreement provides a legal mechanism for the return of the children in the event that a parent refuses to return the children to Australia.
However, if the parent proposes to take the children to a country which is not a signatory to the Hague Convention, some form of financial security is usually required to be made by the parent travelling with the children as a gesture of good will which, in effect, reinforces the parent's promise to return the children to Australia.
The Court can also consider whether there are any risks or threats posed to the child's welfare by the proposed travel or the circumstances of the proposed travel. This is especially relevant in proposed destinations where DFAT issues warnings against travelling to particular destinations.
Depending on the length of the child's proposed stay overseas, the Court will also consider the effect on the child of any deprivation of contact with the other parent as a result of the proposed overseas travel.
Parents who seek the Court's permission to travel with the children overseas should be aware that their application will be assessed on the entirety of the circumstances of the proposed travel. Apart from applying the above factors, there is no particular "formula" which enables one to predict the outcome of such applications. They are determined on a case by case basis.
For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at lawyers@rockliffs.com.au