The issue of overseas travel in family law parenting proceedings is multifaceted. A substantial concern of the Federal Circuit and Family Court of Australia and the non-travelling parent is ensuring the safe return of children to Australia.
Offence of removing a child from Australia
Under section 65Y of the Family Law Act 1975, it is a criminal offence to remove or send a child to a place outside Australia if there is a parenting order in place unless one of the following exceptions applies:
- Each of the parties in whose favour the parenting order was made has provided their written consent for the child’s travel (authenticated as prescribed);
- That the travel is in accordance with an order and the person responsible for the child’s travel is either a party to the parenting proceedings or is acting on behalf of a person who is a party to the parenting proceedings.
Applications for orders permitting overseas travel
In considering an application permitting overseas travel the Court is asked to balance the importance of a child or children experiencing the benefit of overseas travel whilst ensuring the relationship with the non-travelling parent is maintained.
The Full Court in Kuebler & Kuebler [1978] FamCA 26 considered that a Court determining an application to take a child out of the jurisdiction should have consideration to the following non-exhaustive list of factors:
- The length of the proposed stay out of the jurisdiction
- The bona fides of the application
- The effect on the child of any deprivation of access
- Any threats to the welfare of the child by the circumstances of the proposed environment
- The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
The Full Court, in the matter of Line & Line [1996] FamCA 145, provided further guidance with respect to the assessment of the risk of the non-return of a child from overseas travel describing factors relevant to that assessment to include:
- Any continuing ties of the departing parent to Australia – which may include ownership of real estate, business interests, close family and friends continuing to reside in Australia.
- Motives not to return to Australia – which may include the existence of conflict between the parents.
- Motives to remain in the other nominated country – which may again include ownership of real estate, business interests, close family and friends continuing residing in the nominated country.
- Whether the country the departing parent intends to travel is a signatory to the Convention on the Civil Aspects of International Child Abduction.
The Full Court in Line & Line (supra) further considered the provision of security for overseas travel. The provision of security may serve to ameliorate the risk of the departing parent failing to return the children to Australia. In assessing an appropriate level of security, a court should consider a figure that:
- Realistically entices the departing parent to return the children to Australia; and
- Adequately provides for the remaining parent to take action and proceedings in Australia and overseas in an endeavor to obtain the return of the children.
If you have parenting orders or are considering commencing proceedings and anticipate the need or desire for overseas travel, it is important to seek legal advice about your circumstances and the obligations created by orders of the court.
Written by
Matthew Fieldus
Family Law Solicitor
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