I am separated from my partner and I want to travel overseas with our child. What do I do if s/he says no?

by Lajita Allan-Agnew

In all but extreme cases, parental responsibility is shared by the mother and father of the child. When it comes to the matter of travelling overseas with your child/ren, shared responsibility means that the travelling parent cannot take the child without the other parents’ permission.

With all parenting matters, it is always preferable that the parties communicate and reach an agreement. In the event that the parties cannot come to an agreement about allowing the child/ren to travel overseas, you should try to resolve the conflict via mediation. Mediation, however, may not be an option in your matter, and it may be the case that need to travel overseas with your child for a specific and significant event like a 100th birthday party or by a specific date, for example the date of the ‘last ever’ event hosted by David Attenborough.

Travelling overseas with childrenIf you have tried to reach an agreement and do not have the other parents’ permission to travel overseas, you can make an application to the Court for their permission to travel overseas with your child.

An application to permit your child to travel overseas should be filed in the Federal Circuit Court. If however you have a current parenting case in the Family Court, the application should be filed in that court.

On the application form, you must clearly state what orders you are asking the Court to make.

You must also file an affidavit in support of your application. An affidavit is a statement of facts and you should include all the points that are relevant in your case; for example:

  • the details and purpose of the proposed travel, including a copy of the itinerary (if you have one)
  • what links the people travelling have to Australia
  • whether the country being visited is a member of the Hague Convention or if any travel warnings have been issued
  • the immigration status of the people travelling
  • whether you are willing to provide an undertaking to the Court to pay any damages which the Court may decide another party has suffered as a result of the order requested

This is not a complete list and may vary depending on your unique circumstances. It is essential that you provide in your affidavit all the relevant facts as well as any other factors relevant to the other party’s concerns/fears to your child travelling overseas. A good affidavit presents the facts in a numbered list and guides the reader with the use of heading to separate all the issues.

On your application, you should also state whether you are willing and able to provide a monetary sum as security.

If the other parent is concurrently seeking an order to prevent your child leaving Australia, they will outline their reasons for this in their affidavit. They can apply to the Court for an order that:

  1. prevents a passport being issued for your child
  2. requires you to deliver your child’s as well as your passport to the Court, or
  3. prevents your child from leaving Australia.

When an application is made, after it is received by the Court, it must be served on to the ‘respondent’ (other parent) party. This allows the other parent to provide their response to the application and give reasons for why their child should or should not be allowed to travel overseas.

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You should seek legal advice before deciding what to do and we at TBA Law can help you with questions about court forms and the court process, as well as give you legal advice. For further queries contact us on 1300 043 103 to make an appointment in in any one of our offices located in Melbourne, Nagambie, Romsey, Seymour and Wallan.