Taking a child overseas without consent is international child abduction

A child cannot be taken out of Australia without the written consent of both parents or any person who has been issued a parenting order. If there is a risk of a child being removed from Australia, a concerned person may ask the Court to order the passport of the child, including the passport of the person responsible for the risk, to be turned over the Court.

A party wishing to travel overseas with a child must make a reasonable attempt to resolve a dispute and comply with pre action proceedings before commencing proceedings (Family law Rules R 1.05).  Sections 65Y and 65Z of the Family Law Act provide that if there is a parenting order in place or if there are proceedings regarding which parent a child should live with, the child must not be taken outside Australia without the written consent of each party.

Parties seeking to travel must file an Initiating Application and supporting affidavit.

Prior to the parent taking the child away on holidays, and where there is the slightest fear that the child may not be returned, the parties should enter into an agreement which covers the following:

• The purpose of the holiday;
• The provision of itinerary, details of travel, accommodation and tickets;
• Requirement that the child travel only on Australian passports; and

Provision of proper security for the return of the child and that security be in a realistic amount making provis ion for costs, expenses etc of the other party travelling overseas to obtain return of the child.

Alternatively, Court Orders can be made proposing that prior to the parent taking the child on an overseas trip, written notice is provided to the other parent detailing:

• The country to which the child is travelling;
• The name of the person who will accompany the child (if applicable);
• The dates upon which the child will depart from and return to Australia;
• The airline with whom the child will travel; and
• The addresses and telephone numbers at which the child will stay.

Court Orders can also be made imposing other conditions prior to overseas travel, including arrangements for vaccination, travel visas, telephone communication with the parent still in Australia and financial security.

Where there is an appreciable or high risk that the child will not be returned,a Court Order can be sought to restrain the parent from leaving Australia with the child.