If you have separated from your child’s parent and you want to take your child overseas, you need to consider any parenting plan or court order and the other parent’s views where it is safe to do so. If it is not safe to consult the other parent, there are a number of steps you can take that are explained below. You will also need to consider practical things such as your child’s passport, your own visa status, as well as other possible risks involved with travel.
This information is general and is not legal advice. If you have specific legal questions, it is best to talk to a lawyer.
If you have a parenting plan or a court order in place, you are required by law to follow it and inform the other parent of plans. The other parent must have knowledge of the travel plans and give consent for you to travel with your child.
If you do not have a parenting plan or court order in place, we recommend that you consult the other parent and come to a joint decision to allow you to travel with the child.
The law requires parents to decide major and long-term issues with the best interests of the child in mind.
If you can come to a joint decision, we strongly recommend that you put your agreement in writing. This could be in an email or letter. It is important to discuss and record your travel plans including dates, where you will be staying and how the other parent can maintain contact with your child.
If it is not safe to consult the other parent or you are not able to make a joint decision, you can try Family Dispute Resolution. This is where a mediator can help you discuss issues and come to a joint decision.
As a last resort, you may consider going to the Federal Circuit and Family Court of Australia, and making an application to allow you to travel with your child. It is important that you speak with a lawyer before you consider going to court. The court will consider what is in the best interests of your child, including the impact of the travel on the child and contact with the other parent.
If you travel without the other parent’s consent, the other parent may apply to the court to prevent you from travelling, or to have the child returned to them.
If your plans change while traveling, it is important to let the other parent know as soon as possible. Keeping a child overseas without the other parent’s consent is a crime.
Your child will need a passport to travel overseas. If you child does not have a passport, you will need to apply for a passport. This can take some time (a minimum of six weeks).
If you need to apply for a passport for your child, visit our resource page for more information I Want To Apply For A Passport For My Child.
If the other parent does not agree with your travel plans, you can try Family Dispute Resolution.
Understanding the potential risks involved in travelling with your child after separation is crucial. Here are some important considerations that might impact you:
If you have a temporary or bridging visa, you need to check if there are any restrictions on leaving or returning to Australia before you travel. Some visas may limit your ability to re-enter Australia, so it’s important to speak with a migration agent or lawyer to understand your visa conditions.
Get migration advice if you plan to travel on a temporary visa. Visit the Legal Aid website or call 1300 792 387 between 8 am and 6 pm, Monday to Friday.
Fatima wanted to visit her family in Lebanon for a few weeks during the school holidays. She planned to take her 7-year-old son, Samir, with her. She and Samir’s father, Ahmed separated a year ago and have been managing to parent Samir together without a formal parenting plan in place. They mainly communicate via email and text messages around parenting arrangements, when Ahmed can spend time with Samir and school holidays.
Before booking flights, Fatima learned that she legally needed Ahmed’s written consent to travel overseas with Samir. Fatima wrote a letter setting out her proposed travel dates and destination and sent this letter to Ahmed via email, asking him to review, sign and return the consent letter back to her.
This ensured that she was complying with Australian family law and also avoiding any potential issues at the airport. The clear documentation helped ensure a smooth departure and return without legal complications.
Amina, originally from Somalia, had experienced family violence at the hands of her ex-husband, Adem, who is the father of her two young children. After finally leaving the relationship and obtaining a family violence protection order, she was granted full parental responsibility for her two young children through the FCFCOA and there were final parenting orders in place.
Amina’s mother in Kenya had fallen seriously ill, and Amina wanted to travel with her children to visit and support her family. However, she was anxious because the children’s father had previously threatened to harm her if she took them overseas.
Amina followed the conditions set out in the parenting order before she made her plans to travel to Kenya via email. This ensured that she had evidence to show that she tried to consult with Adem before travelling and that she was complying with the parenting orders.
Mona, originally from India, had experienced family violence at the hands of her ex-husband, Amin. After finally leaving the relationship and obtaining a family violence protection order, she had no contact with Amin and was the primary carer of her two young children. Due to the family violence, Amin was not spending any time with the children and he did not know where they lived.
Amina’s mother in Kenya had fallen seriously ill, and Amina wanted to travel with her children to visit and support her family. However, she was anxious because Amin had previously threatened to harm her if she took them overseas.
Mona felt unsafe and scared to contact Amin about her proposed travel. Mona contacted Legal Help on 1300 792 387 and they gave her basic information over the phone and sent her information via email about her legal options. Legal Help also sent her various referrals on how to contact and make an appointment with a family lawyer. Mona contact various family lawyers and made an appointment to obtain legal advice specific to her circumstances. Mona couldn’t afford the lawyer’s fees and decided to go through Family Dispute Resolution with Amin, which was free and she didn’t need a lawyer to represent her. Mona and Amin completed the intake assessment with the Family Dispute Resolution service and a mediation session was booked. The mediation was online; Mona didn’t need to have speak directly with Amin and the mediator was present to assist her to negotiate to enable her to travel to India with her children. The mediator helped her to put this in writing and Mona was able to travel to India without worrying that she had breached any family laws in Australia.
For more information on travelling overseas with your children see: Children: Relocation, travel and the Hague Convention | Federal Circuit and Family Court of Australia
Contact Legal Aid or call 1300 792 387 and ask for an interpreter. This service is open Monday to Friday, 8 am to 6 pm and it is free.
inTouch works with migrant and refugees who are experiencing family violence in Victoria. We can help you to become safe and move forward with your life through case management, legal and migration support and recovery programs.
Find out more by visiting our Get Help page.
If you are in danger, please call the police on 000 or contact Safe Steps on 1800 015 188. They are available 24 hours a day, 7 days a week.
