Family Law FAQs: Can I Travel Overseas With The Children?

Want to travel with the children overseas?  If you have or are seeking parenting orders however, you might want to double-check a few things before making any sure-fire plans, otherwise you could find yourself in hot water and potentially facing a criminal charge.

Section 65Y of the Family Law Act 1975 makes it an offence to take or send a child from Australia if that child is subject to a parenting order dealing with:

  • where a child lives;
  • when a child spends time with a person;
  • when a child communicates with a person; or
  • when a person has parental responsibility for a child.

Similarly, section 65Z of the Act makes it an offence to take or send a child from Australia if there are proceedings before the Court for the making of a parenting order of the sort referred to above.

There are exceptions however, as the Act allows a child to be taken from Australia overseas in the circumstances outlined above, so long as it is done with:

  1. the express written consent of each party; or
  2. a Court Order providing for the overseas travel has been made.

It is crucial then that, if you have a parenting order or are a party to Court proceedings for a parenting order, any international travel involving a child subject to that order or those proceedings must not take place unless you have satisfied one of the above conditions.

If either of these requirements is not satisfied then you could be charged with committing an offence.  The penalty can be imprisonment for up to 3 years.

It is important that any final parenting orders therefore contemplate whether or not any provisions need to be made for international travel of a child or children.  These provisions can include (but are not limited to) addressing issues such as whether all parties must consent to such travel, how much notice the travelling party needs to provide the other and how children’s passports are to be handled.

It is possible to have a final parenting order that a child lives only with one party who has sole parental responsibility for that child, but unless that parenting order contains an order permitting that party to also arrange the international travel of the child without reference to the other party then section 65Y operates to still require both parties to consent to international travel of the child.  This highlights the importance of having properly drafted orders, and receiving Family Law advice with respect to same.