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Shared custody and permission for overseas trips - 7 questions you must ask

in Family Law by Mona Emera on

The story of Australian mother Sally Faulkner has dominated the headlines this year, after she tried to retrieve her children from Lebanon with the assistance of 60 Minutes.

It raises a dilemma that many separated parents have considered: should they let their ex-partner take their children overseas? It’s a difficult question to answer and the answer will obviously depend on the circumstances of each family.

In many cases, parents will want to take the children on a holiday overseas and this is often not a problem. The parent who is intending to travel will obtain consent from the other parent who will usually request and be provided with a copy of the return ticket, itinerary and contact details for the children. Provided the parent is travelling with the child or children to a country that is signatory to the Hague Convention on the Civil Aspects of International Child Abduction, there is some legal protection that the child or children will be returned. Under the Hague Convention, there is a lawful procedure for seeking the return of abducted children to their home country.

So what happens in cases where the parent is proposing to take the children to what is known as a ‘non Hague Convention’ country?

In such situations, parents need to exercise a degree of caution and think very carefully before providing consent to the proposed travel. They should ask themselves:

  1. Does the travelling parent have long standing ties including family and friends in that country?
  2. Does the travelling parent have an established job, home and network here in Australia making it more likely that they will return?
  3. Has the travelling parent expressed a desire previously to take the children to live in that country?
  4. Are there Australian court orders in place?
  5. If so, have those orders been previously breached?
  6. What is the nature of the relationship between the separated parents – is it amicable or acrimonious?
  7. Have the children visited that country in the past?

In some cases, it may even be appropriate and necessary to apply to the court for an order that the children be placed on the airport watch list – meaning they will be intercepted at the airport if an attempt is made to travel overseas.

Careful consideration should also be given to who should hold the passports for the children and whether one parent is able to apply for a foreign passport on behalf of the children without the consent of the other parent.

If you are concerned that your ex-partner is intending to relocate the children overseas without your consent you should seek urgent legal advice. There are ways to prevent travel and the courts generally treat matters where there is an imminent danger of removal with the utmost urgency. 

If you need legal advice relating to matters concerning family law, you can reach us here