I am often faced with questions from parents about the issue of overseas travel for their children. Some parents have reservations about allowing their child to travel overseas. These reservations can stem from concern about the safety of the particular country. The “other” parent may have concerns that the child/children will be kept in that country and not returned.

What Happens If A Parent Refuses To Sign The Passport Application?

Ordinarily parents can make a joint application to the Minister for a passport for their child. If a parent refuses to jointly apply for the passport then the parent seeking to obtain a passport for the child can make an application to court.

In most cases before an application to court can be made the applicant must first invite the other parent to a Family Dispute Resolution Conference (“FDRC”) to attempt to resolve the issue by mediation. If the FDRC is unsuccessful the applicant will be issued with a Section 60I Certificate. This certificate is required to be provided to the court at the time the initiating application is made. The court needs to be satisfied that genuine attempts have been made to deal with the issue in a cooperative fashion. There are certain circumstances in which the FDRC process can be circumvented such as when the application to court is being made in circumstances of urgency.

The court considers many factors when determining whether to allow a child to travel overseas. The leading case of Kuebler and Kuebler (1978) 4 FamLN N4 tells us that the court will consider a number of factors including but not limited to:

1. The length of the proposed stay,
2. The genuine nature of the application,
3. The effect on the child of any deprivation of access,
4. Any threats to the welfare of the child by the circumstances of the proposed environment, and
5. The credibility of the party’s promise to return to Australia.

The court must always consider whether it is in the best interests of the child to be taken overseas.

It is a criminal offence to remove (or have someone else remove) a child from Australia when a parenting order is in force unless the written consent of all parties to the parenting order has been obtained or removal of the child from Australia has occurred in accordance with the parenting order itself.

What If The Country The Children Are To Travel To Is Unsafe?

Each case will be decided on the basis of its own particular facts. The court will consider the evidence being put forward by both parents about the safety of the intended destination.

In the case of V and V [2004] FamCA 1074 the father applied to take his 6-year-old child to the United Arab Emirates (“UAE“).  The mother objected to the travel on the basis that the Australian Government Advisory website suggested it was a potentially dangerous area for westerners to stay. Department of Foreign Affairs and Trade stated with respect to the UAE that “general warning concerning the threat of terrorism against Western people and the need for care” and the department warned Australians saying they should “exercise a high degree of caution”.

In this case the judge found that it was not in the child’s best interests to travel overseas. The judge noted that the travel advice was current, having been updated in the same month that the matter went before the court.

A different outcome was achieved in the case of Dart & Graham [2008] Fam CA 824 where a father applied to court to take his 3 children to Bali to attend at his wedding. Prior to separation, between December 1993 and December 2004 the family had lived in Indonesia. The children had all lived in Indonesia until the youngest child was 6-years-old.  The mother did not object to the children attending at the father’s wedding but she did object to them going to Indonesia since in June 2008 the Department of Foreign Affairs and Trade issued a travel warning stating that those who travelled to Indonesia should exercise caution. The warning drew attention to certain provinces within Indonesia. The court made orders allowing the children to travel to Indonesia to attend the father’s wedding and this conclusion was reached because:

1. The father and children would not be visiting the places nominated as being in civil unrest.
2. The father managed the family’s security for the 11 years whilst they lived in Indonesia. When the family lived in Indonesia they faced many similar potential security threats and despite this they remained living there.
3. The father was an Indonesian resident and had lived in Indonesia for 12.5 years.
4. Indonesia was not a strange land to the children. They had lived there for most of their lives.

Many different factors will be taken into account when determining whether it is appropriate for children to travel to a particular country. When preparing an application or a response to an application all pertinent features of your case should be canvassed within an affidavit so that you have the best chance of persuading the court to make the orders sought by you.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.