Australia’s border is reopening to both outbound and inbound travellers.
Although vaccination requirements and quarantine measures remain in force and subject to change, the opportunity to travel abroad is once again a possibility for Australian families.
However, if you wish to travel with your child overseas – without the other parent – there is more you need to know.
Consultation and Consent
The presumption of equal shared parental responsibility requires parents to consult with one another about major long term issues affecting their child, and make a genuine effort to reach a joint decision about such issues. Unless exceptional circumstances apply, it is imperative that parents consult with each other and reach an agreement about their child travelling internationally.
Existing or Pending Orders
It is essential to ensure that your proposed overseas travel complies with any existing court order regarding parenting arrangements for your child.
If you already have a parenting order in relation to your child, or an order is pending, it is a criminal offence to take or send a child outside of Australia without the consent in writing of everyone covered by the order. There are rules about what kind of written consent is acceptable to the court. These offences are punishable by up to three years imprisonment.
Additionally, taking or sending a child from Australia contrary to an order of the court may result in contempt of court, potentially resulting in a fine or imprisonment.
The consent of both parents (or all parties with parental responsibility for the child) is generally required before a child may be issued with an Australian passport. Even if a child already has a current passport, it is still important that all parties with parental responsibility for the child consent to the child undertaking international travel.
If written consent is not provided by all parties with parental responsibility, you can make a written request to the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’.
The court can also make orders regarding the issuing of a passport for a child.
If you want to prevent an Australian passport being issued for a child, you can:
- lodge a Child Alert Request at any Australian Passport Office, or
- apply to the Court for a child alert order.
A child alert request made at an Australian Passport Office is valid for 12 months. A court-ordered child alert stays in force until a child turns 18, or as directed by the Court. A child alert does not stop a child departing Australia on a valid Australian or foreign passport.
Resolving Travel Disputes
Unless specific circumstances apply such as family violence, child abuse, unacceptable risk, or urgency, parents who cannot agree about arrangements for their children (including travel) are required to participate in Family Dispute Resolution (mediation) before they may apply to Court for Orders regarding their child.
If the dispute is not resolved through Family Dispute Resolution, upon the conclusion of that process, either parent may then apply to the Federal Circuit and Family Court of Australia (“Court”) for orders regarding their child.
In considering such applications, the Court will only permit a child to travel internationally if it determines such travel is in the best interests of the child. In reaching a decision, the Court will likely consider any applicable Australian Government travel warnings, COVID-19 / pandemic related restrictions, and any other issues of risk to the child’s safety and wellbeing whilst abroad.
The Court may also consider if the proposed travel will result in the child missing a substantial amount of school or other events of significance to the child and the non-travelling parent.
The greatest impediment to overseas travel with a child may arise if the Court is satisfied, based on the evidence available to the Court, that there is an unacceptable risk the child will not be returned to Australia.
Family Law Watchlist
The Court can make a number of Orders that prohibit a child from leaving Australia, including a Family Law Watchlist Order.
The Australian Federal Police (“AFP”) maintains the Family Law Watchlist. The AFP will need a copy of the court order before placing a child’s name on the list. The child’s name cannot be removed from the Family Law Watchlist except by further order of the Court.
This system is designed to alert police to the movement of children. It identifies whether children are leaving Australia. The prohibition on travel can be conditional or absolute, depending on the terms of the court order.
The Court can also order the delivery of a child’s or accompanying adult’s passport to the Court. If ordered, the person in possession of the child’s passport must deliver it to the Court. The Court will keep it for the specific amount of time set out in the court order or until further order of the Court.
Additional Considerations for International Travel with Children
Even in circumstances where all parties who have parental responsibility for the child consent to the child travelling overseas, there are additional government requirements – in Australia and overseas – that must be complied with.
COVID-19 – Leaving Australia
Current direction from the Australia government provides that Australian citizens and permanent residents aged 12 years and over, who are fully vaccinated against COVID-19, can leave Australia without needing an outwards travel exemption. They may also be eligible for reduced quarantine requirements upon returning to Australia.
All children under 12 years and 3 months of age are considered fully vaccinated for travel purposes.
Australian citizens and permanent residents who cannot be vaccinated for medical reasons are also treated as vaccinated for the purposes of their travel.
As the COVID-19 pandemic continues to evolve around the world, it is likely that requirements for international travel will also continue to change. Current information from the Australian Government regarding international travel, including travelling with children under 18 years of age, can be found on the following website:
Entry Requirements in Other Countries
Every country or territory decides who can enter or leave through its borders. Being allowed to exit Australia won’t guarantee you entry at your destination.
It is important to check your destination country’s local public health orders regarding any isolation or quarantine requirements upon arrival.
Many countries require children travelling with a single parent to carry additional documents, such as:
- Documents or evidence of the absent parent’s permission to travel;
- Orders proving parenting arrangements for the child;
- A certified copy of the child’s birth certificate.
It is the travelling parent’s responsibility to find out if their destination has special entry requirements for children. Such information may be available by contacting the embassy or consulate of the travel destination(s).
Up, Up and Away?
International travel for children of separated families is complex, and requires a lot of forward planning. 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.