The enormous popularity of taking off overseas on holidays with the kids is something that more and more people now enjoy. But trying to travel with children following a family separation can lead to problems if the former partner objects.

It’s understandable that a parent wishes to give their children the opportunity to see and experience the world. But they may face opposition from the other parent. The reluctant parent may fear that the child could be permanently removed from Australia, that the child may miss too much school, or other important events, or they may be denied the chance to spend time with the child. Unfortunately parents are also increasingly concerned to permit overseas travel for safety reasons.

Generally, the courts will permit a child to travel overseas as long as they are satisfied that the child be will return to Australia and arrangements are made for ‘make up time’ with the other parent, etc.

For parents wishing to travel, often the first difficulty is obtaining a passport. The passport requirements alone are strict and both parents must sign the application. If the non-travelling parent refuses to sign, then the travelling parent will need to seek an order from the Court for the passport to be issued. Further, pursuant to section 65Y of the Family Law Act 1975 Cth, if there is a parenting order in place (or an order pending) then a party is prohibited from removing a child from Australia without the consent in writing of the other party or pursuant to a court order. Unauthorised removal of a child carries a criminal penalty.

For parents wishing to restrict travel of a child overseas, that parent can refuse to sign the passport application, refuse to release the child’s passport, or make an Application to the Family Law Courts to have the child placed on the Australian Federal Police Watch List.

The listing on the Watch List can only occur pursuant to a Court Order and will prevent that child from leaving from any port of exit in Australia.

Once the order is made, the Australian Federal Police will list the child for a specified time (or in some cases, indefinitely) and this will prevent the child’s exit and the police will intervene.

If parents permit travel where a child is already on the Watch List, a court order must be obtained to remove the listing on the Watch List.

Overseas travel can be highly beneficial for children, however parents need to find the balance in potentially competing interests. Facilitating overseas travel must be done in circumstances where a child is protected and ensuring that the safety and wellbeing of the child are addressed.