Separated Parents, International Travel and the Airport Watchlist

For many people, the lifting of international travel restrictions post-COVID is an exciting prospect, and the holiday planning is already in full swing.  Unfortunately, for some separated parents, it has led to tension and conflict, or reignited the fear that their former partner or spouse may try to take their child overseas for an extended period without consent.

At Lamrocks, we often receive enquiries from parents who are locked in a dispute over travel arrangements with their children, or parents who are concerned that their former partner will take their child overseas without their consent. In this article we look at some of the most common questions we receive and provide an overview of the law in this area.

Does my former partner need my consent in writing to leave the country with our child?

Under current Australian legislation, if there are no Parenting Orders in place following separation, and parenting proceedings have not yet commenced, you do not need the other parent’s consent to travel overseas with your child.  Once a parenting application has been filed with the Court however, even if Orders have not yet been made, or there are Parenting Orders in place, it is a criminal offence to take a child outside of Australia except with the written (and properly witnessed) consent of the other parent. The maximum penalty for taking a child out of Australia without that consent or a court order, is three years’ imprisonment.

What can I do to prevent my former partner from taking our child overseas?

It is possible for one parent to prevent a child from being taken outside of Australia, by having the child’s name added to the Australian Federal Police (AFP)’s ‘Watch List’.  This means that a departing parent who then attempts the unauthorised removal of a child from Australia is stopped at the airport and unable to leave.

A child’s name can be added to the Watch List at the time that an Application is filed with the Court and prior to an Order being made by the Court.  Family Law ‘Watch List’ Orders are usually sought in circumstances where there is a risk of a parent taking a child from Australia without the other parent’s consent.  Importantly, once an Order is made for the child’s name to be placed on the watch list it is only removed by an additional Order discharging the Watch List Order, or when the child turns 18 years of age.

Can the Court rule that my former partner is allowed to travel overseas with a child?

In some instances, one parent will seek permission from the Court to travel outside of Australia if the other parent is refusing to give consent.  In situations like this, the Court will often permit the travel if it is to a country that is a signatory to the Hague Convention on International Child Abduction and there are not serious travel warnings in place. 

When the court makes an order regarding a child travelling overseas, it has a wide scope for the conditions it may place on the travel including:

• The parent taking the child must pay an amount of money as a bond, to maximise the likelihood of their returning to Australia.
• The parent taking the child must provide sufficient notice to the other parent, including copies of pre-paid return tickets, dates of departure and return to Australia, copies of an itinerary from a travel agent or airline, and contact details for the child whilst overseas including telephone numbers and addresses for all places the child will be staying.

Can my former partner get a passport for our child without my permission?

If your child doesn’t have a current passport, generally you (the non-travelling parent) will also need to sign the passport application. 

Importantly, if you feel that there’s a risk of your partner fraudulently lodging an application for the issue of a child’s passport, you can complete a Child Alert Request to be notified if an application is received.

If you do not consent to the issue of the passport, your former partner can make an application to the court seeking permission to obtain a passport without your signature, unless there are special circumstances under subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015 which include, but are not limited to:

• the existence of child welfare orders
• an inability to contact the non-consenting person for a reasonable period of time
• the absence of contact with the non-consenting person for a substantial period
• a court order from a country that has signed the Hague Convention on the Civil Aspects of International Child Abduction permitting a child to have a travel document, travel internationally or to have contact with a person outside the country where the order was made.

In many cases, if one parent has to apply to the Court for consent to issue a passport, the Court may require that the parents attempt family dispute resolution first, unless there is some urgency or risk issues.

Are there any rules about where the child’s passport can be kept?

Disagreements about which parent should keep the passport of the child often arise.

When parents cannot agree who holds the child’s passport, or if there is a legitimate risk one parent might take a child out of the country without the other’s consent or knowledge, it may be appropriate to appoint a third party to keep a child’s passport safe when the child is not travelling.

One option might be to place the passport in a safe deposit box with a bank requiring the joint signature of the parents for the removal of the passport.

What can I do if I want to take my child on an overseas holiday and my partner won’t allow it?

Wherever possible, it is generally best to discuss your travel plans with the other parent well in advance.  By providing all the relevant information and copies of itineraries and tickets etc, you may be able to reassure your former partner and prevent them from filing an application to prevent your child from travelling.

You should also plan to travel during periods when the child, or children, are already in your care so as not to impact your parenting arrangements, and in the current COVID-19 climate, check any travel restrictions and quarantine regulations that might affect the other parent’s ability to see the child for an extended period.

If you have any questions concerning your ability to travel with your child, or the potential risk of parental child abduction, contact the experienced Family Law team at Lamrocks Solicitors as soon as possible on ph: 02 4731 5688.