From sparkling beaches to tropical rainforests, outback adventures to exciting cities, the opportunities for travel within Australia are endless.
Needless to say, pandemic-induced state border closures over the past two years have tended to make travel feel like a distant pastime.
However, with the recent easing of Covid-related restrictions across many Australian states and territories, is it ok to seize the opportunity to travel with your child, without the knowledge or consent of the other parent?
Before booking your next family holiday, it is important to consider the following:
Consultation and Consent
In accordance with the Family Law Act 1975, it is presumed that parents have equal shared parental responsibly for their child – unless there is an Order of the Court to the contrary, and/or there has been abuse of a child, family violence, or it is not in the child’s best interests.
The presumption of equal shared parental responsibility requires parents to consult with one another about major long term issues affecting their child, including:
- Religious and cultural upbringing
- Change of name
- Changes to living arrangements that make it significantly harder for the child to spend time with a parent
The expectation is that parents will make a genuine effort to reach a joint decision about these important aspects of their child’s life and not make major decisions without consulting the other parent.
It follows that, if you are planning significant travel with your child, in most circumstances, it is appropriate that you consult the other parent and obtain their consent to your child undertaking such travel with you.
Existing Orders or Arrangements
Do you have a court order in place regarding parenting arrangements for your child? If so, the terms of that order will mandate the time each parent is to spend with the child. Any travel arrangements must comply with the terms of the order. Some flexibility may be available if the order permits the parents to make further or other parenting arrangements by agreement. Broader clauses such as this allow the opportunity for parents to negotiate travel (and other arrangements) for their child.
Even if you do not have a court order about care arrangements for your child, it is important to consider established parenting arrangements, and the impact of your proposed travel upon the time your child would otherwise be spending with the non-travelling parent. If your proposed travel plans will encroach on the time your child would usually spend with the other parent, this should be negotiated.
Domestic Travel and COVID-19
In the present pandemic climate, it is of course necessary to consider the current travel restrictions for each Australian state and / or terrirory that you wish to travel to and from with your child.
As COVID-19 continues to evolve, with new hotspots declared and snap restrictions imposed sometimes with just hours’ notice, it can be very difficult to make plans for interstate travel with any confidence – or whether you can travel at all.
Although your proposed time away may be scheduled to take place entirely while your child would ordinarily be in your care, it is important to also consider what restrictions may await upon your return home, such as compulsory quarantine requirements, and whether such restrictions will affect the child’s time with the other parent, and other commitments, such as school.
Agreement to Travel
When negotiating your proposed travel for your child with the other parent, there are several measures that may help you to facilitate an agreement, such as:
- Give as much notice as possible to the other parent of your proposed travel plans;
- Provide an itinerary of your proposed travel (including flight details if applicable);
- Offer the non-travelling parent a contact number for the child whilst they are travelling, so they may continue to communicate (via phone, FaceTime etc);
- Schedule appropriate make-up time for the child to spend with the non-travelling parent, upon the child’s return home.
Resolving Travel Disputes
If the other parent will not agree to your proposed travel arrangements for your child, participating in Family Dispute Resolution (mediation) with the other parent may assist. The process of mediation will give you both the opportunity to discuss your wishes and concerns, in a safe environment, with the assistance of an impartial mediator (Family Dispute Resolution Practitioner). Although compromise is often required, mediation can be very helpful in assisting parents to work through the issues in dispute and agree upon an appropriate, child-focused outcome.
At whatever stage mediation is finalised, your Family Dispute Resolution Practitioner will issue you and the other parent with a certificate, confirming the outcome of your mediation.
Once the certificate is issued, if the parenting dispute is not resolved, either parent may then apply to the Federal Circuit and Family Court of Australia (“Court”) for orders about the child. In matters concerning travel arrangements for the child, the parent who wishes to travel with the child may seek an order of the Court permitting such travel. Conversely, the parent wanting to prevent the child from travelling may seek an Order restricting such travel. In considering any such Application (and Response), the Court will assess whether the proposed travel is in the best interests of the child, and make Orders accordingly.
Importantly, when applying to the Court for Orders about parenting matters, any party to those proceedings may broaden the scope of orders sought beyond matters relating to travel only. In applying to the Court, or responding to an application for parenting orders, a party may seek a range of substantive orders, including who the child will live with, and the child’s time and communication with the other parent.
Unless exceptional circumstances of urgency or risk arise, litigation of parenting matters should always be considered a last resort and not entered into without first obtaining independent legal advice.
Travel plans for children of separated families can be complex. For comprehensive information and advice in relation to travel disputes involving your child, we invite you to contact our Family Law Accredited Specialist, Ruth Jeffers, for an initial consultation.