Can A Mother Take Her Child Abroad Without The Father’s Consent
If you want to take your kids overseas without the father’s consent, you should know how the law works. This is especially important if you are separated or getting a divorce. There are laws in place to protect children from being taken out of the country by one parent without the other parent’s permission.
Even if you are on vacation, you should ensure that taking your kids overseas without your partner’s or ex-partner’s permission won’t get you in trouble with the law.
Why Do I Need Consent From My Partner?
In recent years, there have been several high-profile cases where one parent took a child out of Australia and to another country. For example, the Australian Missing Persons Register says that more than 150 children are handled by a parent every year, and many are never found.
There are many reasons why children can be taken out of the country. Sometimes it’s because of domestic violence. Sometimes, it’s because of a custody battle; sometimes, a parent wants to move with their kids but doesn’t want to go through the legal steps to do so.
What Does The Law Say About Sending Kids To Another Country?
Even though there has yet to be a law that makes it illegal, many rules make it hard for parents to take their kids overseas without the other parent’s permission.
If one parent takes a child without the other parent’s permission, the other parent can ask the court for a recovery order. For example, a recovery order is a document from the court that says one parent has to give back a child or children. If you get a recovery order, it’s essential to follow the rules because you could face more legal trouble if you don’t.
Can My Partner Stop Me From Taking The Kids To A Different Country?
If your partner is worried that you might sneak the kids out of the country without their permission, they can put your kids’ names on an airport watch list.
The AFP maintains the airport watch list and requires airports in Australia to retain it. However, if a parent with a child on the airport watch list tries to take that child out of the country, the child will not be allowed to leave.
This applies to both parents, so if your partner wants your children to be on the list, they will be able to leave the country once the court order is lifted (which can only be done by the AFP). Your partner can also ask to be put on an airport watch list and a list of people who can’t leave Australia. This official court order says you can’t take the kids on order out of the country.
What If My Partner Doesn’t Want To Let Me?
If your partner doesn’t let you take your kids outside of Australia, you can ask the Federal Circuit Court in Australia for permission.
You will have to sign an affidavit and tell them where you are going, your plans, if you have any ties to the country you are going to, and anything else necessary. You may also have to pay a certain amount as a deposit, which will be returned to you when you leave.
Can I Get My Child A Passport?
Both of the child’s parents must sign the application for a child’s passport. This is usually the name of the parent listed on the child’s birth certificate. Still, it can also be grandparents or other relatives who may have parental responsibility or welfare organisations that have taken care of the child.
If parents or someone with parental responsibility signs the passport, it will be issued. But you can ask the Department of Foreign Affairs and Trade to make an exception and let you get a passport without the signatures of both parents.
Even though it is easier to take your kids abroad with your partner’s permission, it is sometimes possible.
Legal Considerations Before Taking Your Child Overseas
Hague Convention & International Child Abduction
Australia is a signatory to the Hague Convention on International Child Abduction. This means if a child is wrongfully taken overseas, the other parent can request their return under international law.
Traveling without consent can lead to international legal complications under the Hague Convention, which could result in court action and even criminal charges.
What Happens If You Take Your Child Overseas Without Consent?
Taking a child overseas without consent is a serious legal matter in Australia. Possible consequences include:
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Criminal charges for parental child abduction under the Family Law Act 1975.
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Fines or imprisonment depending on the severity of the breach.
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Loss of custody or parental responsibility, as courts may consider this a violation of the child’s best interests.
Court Criteria for Granting Permission to Travel
When you apply for court approval to travel overseas with your child, the court will consider:
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Best interests of the child as the primary factor.
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Evidence of return, such as confirmed return tickets, employment, or property ties in Australia.
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Travel itinerary and accommodation details to demonstrate transparency.
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How the other parent will maintain contact, including video calls or scheduled updates.
Practical Tips for Parents Planning Overseas Travel
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Apply for written consent from the other parent and keep proof.
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Start early, as court applications can take time.
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Prepare all documents, including the child’s passport, itinerary, and return flight details.
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Offer communication options like video calls or extra time after the trip for the other parent.
Emergency Travel Situations
If there is a medical emergency or family crisis, urgent court applications can be made. Platinum Lawyers can assist with emergency travel applications within 24 hours to ensure compliance with family law.
Travel With Court Orders Already in Place
If your parenting orders include a “no overseas travel” clause, you must apply for variation before booking flights. Traveling without court approval can lead to legal penalties.
Risk of Breaching Orders
Breaching a court order is a serious offense under family law and can negatively impact your parenting arrangements, including future custody rights.
Bond Requirement
Courts often require a monetary bond as a security measure to guarantee the child’s return to Australia. Platinum Lawyers can guide you through the bond process and court compliance requirements.
How Platinum Lawyers Can Help With Overseas Travel and Child Custody
1. Can Platinum Lawyers help me understand if I need the father’s consent to take my child overseas?
Yes. Platinum Lawyers can explain the legal requirements under the Family Law Act and whether consent is needed based on your custody arrangements.
2. What if I have sole parental responsibility—can I travel without consent?
If you have a court order granting sole parental responsibility, Platinum Lawyers can confirm whether this allows you to take your child overseas and help you interpret your court orders.
3. How can Platinum Lawyers assist if I want to apply for a court order to travel?
Platinum Lawyers can prepare and lodge an Application for Leave to Travel with the Federal Circuit and Family Court of Australia, including drafting your affidavit and supporting documents.
4. What happens if the father refuses consent—what can Platinum Lawyers do?
If the father refuses, Platinum Lawyers can negotiate on your behalf or apply to court for permission for international travel with your child.
5. Can Platinum Lawyers help me if my child’s name is on an airport watch list?
Yes. We can apply to have your child removed from the AFP Airport Watch List through court proceedings, provided you have legitimate reasons for travel and meet legal conditions.
6. Can Platinum Lawyers assist in urgent travel situations?
Absolutely. We handle urgent applications for overseas travel, including when there’s an emergency or compassionate grounds for leaving the country.
7. What if the father accuses me of intending to abduct the child—how can you help?
Platinum Lawyers will represent you in court and present evidence of your intention to return, such as return tickets, ties to Australia, and financial commitments.
8. Can you help me get my child’s passport without the father’s signature?
Yes. We can assist in applying for an exception with the Department of Foreign Affairs and Trade (DFAT) or seek a court order authorising passport issuance.
9. What if there are existing court orders restricting travel—can Platinum Lawyers assist?
Yes. If there is an order preventing overseas travel, we can apply to vary or discharge the order and provide legal arguments for why travel is in the child’s best interest.
10. How can Platinum Lawyers help if my child has been placed on a no-fly list?
We can file an application to remove or suspend the no-fly order and represent you at the court hearing to show compliance with family law obligations.
11. Can Platinum Lawyers provide advice on travel conditions imposed by the court?
Yes. We explain bond requirements, return undertakings, and conditions for overseas travel, ensuring you meet all obligations to avoid breaching orders.
12. How can Platinum Lawyers help prevent legal trouble if I travel without consent?
We advise against illegal travel and guide you through the correct legal process to avoid charges of international child abduction, including Hague Convention implications.
The law protects children and families from illegal child abduction, so you should talk to a lawyer if you want to take your kids out of the country against your partner’s wishes.
So, to sum up, have fun planning for the holidays, but watch out for the things above, and if you need more time, talk to the other parent to avoid problems.
Platinum Lawyers is a law firm with offices in both Sydney and Parramatta. If you want to meet with a family lawyer, call us at (02) 8084 2764.
