18 Nov Child custody, passports and overseas travel
Another topic I often am asked about is the issue of overseas travel when parents have separated. More times than not after a separation, parents have little trust of each other. In the mix of all this mistrust is one parent’s wishes to take the children on an overseas holiday, whether it is a Pacific Island cruise, a trip to Fiji or Bali or a grand European adventure; the issue remains the same. What do I do if the other parent refuses to sign a passport application?
In parenting matters each case must be judged on its own unique set of circumstances. That being said, the Family Law Courts which are charged in making Orders “in the best interests of the child” must decide between the risk of allowing a parent to take the children overseas (and outside the jurisdiction of Australian Law) versus restricting a parent’s right to travel outside Australia with his/her children and the benefits such travel can have for a child.
Whilst there is always a risk in allowing a parent (particularly in heated child custody proceedings) to remove children from Australia, this risk must be judged objectively. Is the risk that the parent is going to abscond with the children realistic?
Imagine two scenarios:
In the first instance a parent who has lived all of his/her entire life in Australia, has no overseas family or other links to a foreign country, has a long local work history, owns property locally and otherwise has many cultural, family and financial links to Australia wishes to take the children on a holiday overseas verses a parent who has significant overseas cultural and family and links, does not own property or has no significant ties to Australia wishes to travel overseas with the children.
In the first example, the other parent would rightly be criticised for refusing to sign a passport application or otherwise permitting the children to travel overseas. In the second example there may well be a reasonable and justifiable reason not to permit such travel. It all comes down to the relevant facts of the matter.
In short, where a parent wishes to travel overseas and the other parent unreasonably denies that parent the opportunity to take the children overseas with them, it is quite easy to apply to the Family Law Courts seeking Orders to allow the issuing of a passport and permission to travel internationally with the children. If there are ongoing parenting proceedings on foot, the non-permitting parent may even in fact significantly damage their case if he/she unreasonably withholds consent for the children to travel overseas.
In assessing your own situation, you need to look objectively and ask “What is the risk? Is the other parent really going to take off with the kids and never come back?” If the answer is “no” then it would be unreasonable to deny consent and the denying parent may well be criticised by the Court for doing so. Indeed that parent may even face a costs order against them for requiring the other parent to bring them to Court. On the other hand, if the risk is genuine, the parent refusing consent may be well justified in denying consent. It all comes back to the relevant objective circumstances of the particular case.