We are only weeks away from Christmas and this is usually the time that families enjoy a holiday away at the end of a busy year. Whether it be a local beach getaway or an extravagant overseas holiday, when there has been a separation or divorce and there are children involved, it is important to understand your obligations regarding the holiday period and the arrangements for your children.
You may have formal court orders which stipulate how the child/ren are to spend time with their parents over the break but if you don’t, it is important to remember that you cannot unilaterally take off on an inter-state or overseas holiday with the child/ren without the other parents consent.
Travelling overseas with children is a particular area of concern after separation/divorce, and you should ensure that you are aware of your obligations before doing so.
If your child/ren do not yet have a passport, written consent by both parents needs to accompany an application for their passport otherwise it will not be issued.
In circumstances where one party is refusing to provide such consent, an application can be made to the Court requesting that the child’s passport be issued without requiring the consent of the other parent. However, this can be a costly exercise and the Court will take into account all of the circumstances of the parties, including whether it is in the best interests of the child/ren that they travel overseas and the travel itinerary (including dates, destinations and travel arrangements) before making such an order.
Alternatively, if one parent is concerned about the other parent applying for a passport to take the child/ren overseas without consent, they can make an application to the court to prevent a passport being issued and further, the Court may order that the child/ren are not to be taken out of Australia. A ‘Child Alert Request’ can also be lodged with the Department of Foreign Affairs and Trade, which will be valid for twelve months and will allow the parent to be notified if a passport application is received in the child’s name.
If children are removed from Australia by a parent without the other parents consent or the overseas travel is threatened by one parent, two different types of alerts can be issued depending on whether the child has a passport or does not have a passport, and the present orders in place for the child/ren’s living arrangements.
If there are orders in place regarding the child’s living arrangements, a PACE Alert can be registered with the Australian Federal Police (‘AFP’) which will place the child on an ‘Airport Watch List’ and the child’s information will be available at all international departure points throughout Australia.
A PACE Alert can still be registered with the AFP if there are no orders in place for the child’s living arrangements, however it will not be activated until the Court grants the order and a sealed copy is provided to the AFP.
It is important to also remember that neither of the above alerts will override a parties ability to possibly apply for a foreign passport for the child, or travel with a child who has already been issued with a foreign passport. If there are concerns about a foreign passport, the relevant Embassy of that Country in Australia should be contacted immediately.
If you require any legal advice or assistance in relation to children’s matters, including holiday arrangements, please do not hesitate to contact one of our experienced Family Lawyers today on 07 5563 8970 to arrange an initial consultation, free of charge.
