Australia is culturally diverse, with many families sharing various nationalities and cultures. For some families, separation may be a time when a parent wishes to return to live with their family of origin overseas and take the children with them permanently.
Often, parents simply wish to travel overseas on holidays with their children so that their children have time with their extended family and to experience their culture. A parent’s career may also offer relocation to foreign countries for a period of time. That parent may want the children to accompany them to their new location.

In this article, we discuss parental concerns about overseas travel, the Australian Family Law Act’s stance, airport watchlists, and common considerations for families in travel agreements.

When it comes to discussing children travelling overseas, clients generally express these views:

  1. They understand that the children have family overseas who would like to spend time with them, but they are concerned the other parent may not return the children to Australia.
  2. If they agree for the children to live for a period of time with the other parent overseas, how can they ensure their return at the agreed time?
  3. They feel uneasy about the proposed travel as the other parent is evasive about the details, has the children’s passports, and states, ‘It doesn’t feel right.’
  4. Where they are concerned about the risks for the child in having time with that extended family overseas.
  5. Maybe to avoid conflict, they should agree about the children going.
  6. I have the Australian Passport, so I don’t think they can leave.

Under the Hague Convention on the Rights of a Child, Article 8 identifies the rights of the child to preserve his or her identity, including nationality, name, and family relations, as recognised by law.

In Australia, the Family Law Act includes as one of its considerations when determining what is in a child’s best interest the “culture, lifestyle and tradition of the child and either the children’s parents……as the court thinks are relevant.”

In principle, spending time overseas and with extended family may be an enriching experience for a child. However, some may be exposed to risk.

The risks vary but can include risks due to family violence or where the culture is contrary to a child’s rights.

Example of placing a child on the Airport Watchlist

As an example, in one matter, the mother was put under pressure by the father of the 12-year-old daughter to give him her passport and for her to travel overseas.

She refused but was worried the daughter would be removed without her agreement. This family’s history was that the eldest sister was taken overseas, and the father’s family forced her to enter into an arranged marriage in her early teens. She had no contact with her eldest daughter, and her unknown whereabouts. There was a risk in this case as that country was also not a signatory to the Hague Convention.

In this instance, the child’s name was placed on the Family Law Watchlist with the Australian Federal Police so that she could not be removed from Australia, and parenting orders were made for the child’s care.

Other risks may be posed by the parent, such as a parent with a propensity to misuse alcohol and who ordinarily has reduced time with a child – in this instance, the risk is the child being left with an alcohol-affected parent who cannot safely care for them in a foreign country exposes that child to unacceptable risks and that travel should not proceed.

Factors to consider where you are concerned about your children travelling overseas:

  • Do they have a current passport? In Australia, both parents need to sign for the passport and agree to the Australian Passports Office to release it.
  • . Is the child entitled to dual nationality and holds another passport from a foreign country? If so, some countries will issue passports on both or just one parent’s application so the child can depart Australia using that Passport.
  • What countries will the child travel to, and what countries are they agreed to? Australia is a convention country under the Hague Convention on Civil Aspects of International Child Abduction. This means that provided the country that the child travels is also a signatory to this and has in place local laws to give effect to the convention, there are intercountry legal proceedings so that if a child is not returned to Australia at the agreed time or at all that the country may be ordered to return to Australia where the child’s care arrangements are then determined by the Federal Circuit and Family Court of Australia on the Child’s return.
  • If children are in a non-Hague convention country, then proceedings need to be commenced by the left-behind parent in that country’s laws. Those laws may be significantly different from the Family Law Act in Australia. The child may or may not be ordered to return.
  • Is there evidence that the travelling parent may not be returning to Australia with the children, such as the parent selling their home, terminating their lease, or terminating their employment, which is contrary to the travel being short term?

How to place a child on the Airport Watchlist

If there are reasonable grounds to prevent a child from being removed from Australia, an initiating application can be filed in the Federal Circuit and Family Court of Australia (FCFCOA) for the child’s name to be placed on the Australian Federal Police Watchlist. Once you have an application filed and before it is heard by the FCFCOA court, you can then complete the Family Law Watchlist Request Form. Usually, the AFP is very quick in placing the child on the Airport Watchlist once the form is submitted. The form can be found here.

Once the children’s names are on the Australian Federal Police Watchlist, they cannot depart Australia via air or seaport for 2 years or at the same time frame as the court orders.

The Australian Passports Office can notify a parent if a passport is applied for. It will not prevent a passport being issued.

Common considerations for families where travelling overseas is agreed and a consent order may be appropriate:

  • When can a child travel outside the Commonwealth of Australia?
  • Who needs to accompany them?
  • What information must be provided to the left behind parent, such as the full itinerary and flight and ship numbers and departure and arrivals, full addresses, and contact details of the accommodation for the child;
  • Restrictions on travel to high conflict areas or where there is current DFAT travel warnings issued;
  • Restrictions on countries that are not signatories with Australia under the Hague Convention on Civil Aspects of International Child Abduction.
  • For Children with dual nationality – what passports can they travel on, and is travel restricted to the Australian passport only?
  • How the left behind parent is to be contacted in an emergency and or otherwise communicate with the child.
  • If overseas travel is confined to school holidays only, what is the frequency of agreed travel?

If a child is withheld in the country, the orders made assist the left behind parent in their application under the Hague Convention and any application for access to the child under a Hague access application.

Our advice is that when parents have concerns about overseas travel, they raise those concerns.

They should obtain legal advice before the child departs from the Commonwealth of Australia.

If they do not agree to the child’s travel, they need to be clear that the travel is not agreed to; they need to be clear that the travel is not agreed upon.

FREQUENTLY ASKED QUESTIONS When Travelling overseas

1. What is the Hague Convention

In Australia, the Hague Convention primarily refers to the Hague Convention on the Civil Aspects of International Child Abduction. This convention is implemented in Australian law through the Family Law (Child Abduction Convention) Regulations 1986.

The Hague Convention on International Child Abduction is crucial in cases where a child has been wrongfully removed from their country of habitual residence or retained in a different country, in violation of custody rights. Australia, like many other countries, is a signatory to this convention, which provides a legal framework for the prompt return of abducted children to their country of habitual residence.

Under Australian law, the Hague Convention on International Child Abduction allows for procedures to be followed when a child is taken across international borders without the consent of the other parent or in violation of a court order. The central authority in Australia responsible for handling Hague Convention cases is the Australian Central Authority, which operates within the Attorney-General’s Department.

It’s important to note that Australia’s involvement in the Hague Convention extends beyond just child abduction cases. The country is also a signatory to various other Hague Conventions covering service of process, adoption, family law matters, and more. These conventions facilitate international cooperation and provide mechanisms for resolving legal issues that transcend national borders.

2. What Countries are Signatories to the Hague Convention in Australia

The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed here.

3. What is the Central Authority?

In the context of the Hague Convention on the Civil Aspects of International Child Abduction, the Central Authority is a designated government agency responsible for coordinating and facilitating communication and cooperation between countries involved in cases of international child abduction.

Each country that is a party to the Hague Convention designates a Central Authority. The Central Authority serves as the primary point of contact for both incoming and outgoing requests related to child abduction cases. Its responsibilities typically include:

  • Receiving and processing applications for the return of abducted children.
  • Facilitating communication between the authorities and parties involved in abduction cases.
  • Providing information and assistance to parents seeking the return of their abducted children.
  • Coordinating efforts with the Central Authorities of other countries to resolve abduction cases per the provisions of the Hague Convention.
  • Assisting with the enforcement of court orders related to the return of abducted children.

In Australia, the Central Authority responsible for handling Hague Convention cases, including international child abduction cases, is within the Australian Government’s Attorney-General’s Department. This agency works closely with its counterparts in other countries to ensure the swift and orderly resolution of abduction cases with the principles of the Hague Convention.

4. What are the DFAT travel warnings in Australia?

The Department of Foreign Affairs and Trade (DFAT) provides travel advice for Australians. They issue travel advisories for different countries based on various factors, such as political instability, natural disasters, health risks, and security concerns.

These advisories are categorised into different levels to indicate the degree of risk:

Exercise normal safety precautions: This level indicates no significant security concerns at the destination, and travellers should exercise common sense and caution.

Exercise a high degree of caution: This level suggests that there are some security risks or concerns in the destination that travellers should be aware of and take precautions accordingly.

Reconsider your need to travel: This level advises travellers to reconsider their plans to visit the destination due to significant safety or security risks.

Do not travel: This level indicates the destination has extreme risks, and travellers are strongly advised not to travel there.

Travel advisories can change frequently based on evolving circumstances in each country. Therefore, it’s essential for travellers to regularly check the DFAT website for the most up-to-date information and advice before planning any international trips.

How Ramsden Family Law Can Assist You With Overseas Travel

At Ramsden Family Law, we understand the complexities and concerns in navigating overseas travel arrangements for separated parents and their children. Our experienced team is dedicated to providing tailored legal advice and assistance to address each family’s unique circumstances. Whether it’s drafting consent orders, negotiating travel agreements, or taking legal action to protect your child’s best interests, we are here to guide you through the process with compassion and expertise. Contact Ramsden Family Law today to schedule an initial consultation and obtain expert guidance on your parental rights concerning international travel with your children.

Posted in: Child Support, Divorce, Latest News, Parenting

March 18 2024