If you want to take your children overseas without their other parent, it’s important to understand how the law works, especially if you are separated or getting divorced.
There are certain legal protections which are in place to prevent children being abducted by a parent and taken out of the country without the other parent’s permission.
Even if you are just going for a holiday, it’s important to make sure you aren’t going to get into legal trouble for taking your children overseas without your partner or ex-partner’s permission.
Why do I have to get my partner’s permission?
In recent years, there have been a number of high profile cases where one parent has taken a child out of Australia to another country.
According to the Australian Missing Persons Register, over 150 children are abducted by a parent every year and many of them are never found.
Children can be taken out of the country for a number of reasons. Sometimes it’s due to domestic violence, other times it’s because of a custody dispute or because a parent wants to move and take their children with them, but doesn’t want to go through the usual processes in order to do so legally.
What does the law say about taking children overseas?
Although currently there is no law in place making it a crime, there are a number of provisions in place designed to prevent parents from taking children overseas without the other parent’s permission.
If one parent takes a child away without the permission of the other parent, the other parent can apply for a recovery order from the court.
A recovery order is a court-issued document which requires one parent to return a child or children.
If you are served with a recovery order, it’s important to comply with any terms laid out as you can face further legal action if you don’t.
Can my partner stop me taking the children overseas?
If your partner is concerned that you may take the children overseas without their permission they can apply to have the names of your children placed on the airport watch list.
The airport watch list is held by airports in Australia and is updated by the AFP. If any parent tries to remove a child who is on the airport watch list from the country they will not be allowed to leave.
This applies to both parents, so if your partner has requested your children be listed, they won’t be able to take them out of the country until the court order is lifted (which can only be done by the AFP).
As well as the airport watch list, your partner can also apply for a restraint for removal from Australia order.
This is a formal court order which prohibits you from removing the children listed on the order from the country.
What if my partner won’t give permission?
If you want to take your children overseas and your partner won’t give you permission, you can apply to the Federal Circuit Court in Australia.
You will need to sign an affidavit and provide information about where you are going, your itinerary, any links you have with the country you are travelling to and any other relevant factors.
You may also be required to pay a sum of money as security which will be refunded on your return.
Can I get a passport for my child?
Passport applications for children require the signature of each person with parental responsibility for the child.
This is usually the parents named on the child’s birth certificate, but it can also include grandparents or other relatives who may have parental responsibility, or welfare organisations who have assumed responsibility for the child.
Without the signature of both parents (or those with parental responsibility), a passport won’t be issued.
However, it is possible to apply to the Department of Foreign Affairs and Trade for special consideration to have a passport issued without the signature of both parents.
Although it is difficult to take your children overseas without your partner’s permission it is possible under certain circumstances.
The law exists to protect children and families from unlawful child abduction, so it’s important to seek legal advice if you are planning to take your children out of the country against your partner’s wishes.