Taking Children From Australia

Date: Aug 22, 2010
Document Type: Article

Australia has many residents with family ties overseas. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree upon whether a child can travel overseas with one of the parents, 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.  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 Convention" cases, because of an international agreement called the Hague Convention, which sets outs rules and procedures for the return of children taken overseas or wrongfully withheld from returning to Australia.

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 Convention 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 for 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.

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law. 

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