He wants to take the kids overseas

Date: May 02, 2009
Document Type: Newsletter

Australia has many residents with family ties overseas, and we are also a nation of travelers. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree, a court will make the decision, and the decision will be based on what is best for the child.

Where there is no real fear of a child not being returned, the decision can be a lot easier. In a recent case, the father was remarrying in Bali. He wanted his ten year old son to be at the wedding, and to be an usher. The mother objected, as there was a government travel advisory in place, advising against non-essential travel to Indonesia.

The court gave permission for the son to go. It noted that there was a risk, but that many Australians holidayed in Bali and that conditions in such a large country would vary from place to place. It found that the benefit to the son in being a part of his father's wedding outweighed the risks in the visit.

The tougher cases - and the ones which can make the headlines - are those where a child overseas on an agreed (or court-approved) visit is not returned. These cases are known to lawyers as "Hague" cases, because of an international agreement called the Hague Convention, which sets outs rules and procedures for the return of children.

Not all countries have signed the convention, particularly in Asia or the Middle East, and when courts are considering whether to give permission for a trip, the Hague status of the destination can be very relevant to the outcome. The important protection of the Hague Convention is that normally decisions about the child will be made by the courts of the country of normal residence. So if an Australian child, living with the mother in Australia, is not returned to Australia by, say, an American father after a holiday in America, the American courts would send the child back to Australia for our courts to make a decision about changes to the parenting arrangements.

If a proposed destination is not a Hague convention country, courts may require some financial security against the child's return, and if there had been threats to relocate a child in such a country, permission to travel might well be very hard to get.

If there are grounds for fearing unauthorized overseas travel, a parent can seek a "Watch List" order, whereby a child's name is listed by the Australian Federal Police to prevent departure from Australia.

A passport application for a child requires both parents' signatures, and a court order. Problems can arise, however, if a child already has a passport, which one parent holds. If an agreement cannot be reached about where it will be kept, a court will decide, and it might well be held by the court or by a lawyer.

One lesson which should come from all of this is that if you are planning an overseas trip with a child, start planning early so that any hurdles can be faced in adequate time.

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