Are you thinking of taking the kids away during the Christmas holidays?
If there are parenting orders in place, you need to be very careful to ensure that your plans don’t result in a breach of those orders. We love spreading the holiday cheer here at Gordon & Barry Lawyers, so if you have any questions about what you can do, or need help from experienced Family Law and divorce specialists with your negotiations, give us a call.
Parenting Orders and Holiday Travel
Almost every parent wants to give their children special experiences during their holidays, and often this can involve travelling to fun destinations or to visit rarely seen relatives and extended family. Parenting Orders generally contain a list of requirements around travel that aim to strike a balance between the needs of one parent to share exciting new experiences with their children, and the needs of the other parent to know that their children are safe, happy and well.
There are many things that can be done to ensure that both of these needs are met. Even if these issues are not covered in your parenting orders, they can go a long way to making sure that everyone has a happy holiday.
1. Give the other parent plenty of notice of your intentions so they aren’t taken by surprise at the last moment.
2. Plan your travel for the time when the children will be with you, so you are not cutting into the other parent’s holiday time, unless you have reached an agreement that allows you to do so. If you do have an agreement, make sure it is in writing and that everyone is clear on the details.
3. Provide the other parent with your itinerary well in advance, including departure and return dates and times. If you are travelling long distance, including a copy of your return tickets and the addresses where you are staying can be an effective way to relieve the other parent’s anxiety.
4. Make sure the other parent has a contact telephone number for you and the children, so they can get hold of you if necessary. Also, set up a schedule for regular calls between the children and the other parent and stick to it. If for some reason the call can’t take place on time, do your best to let them know so they aren’t sitting by the phone worrying.
Can I take my kids overseas?
The answer to that question will depend on what your parenting orders say, or if you don’t have orders, what your relationship with the other parent is like. Many parenting orders stipulate that the parents will cooperate to ensure that the children have current Australian passports and share the costs of having them renewed. Each parent may be allowed to travel with the children outside of Australia, so long as this occurs during their time with the child and does not interfere with their schooling, unless both parents agree otherwise.
It is also quite common for the orders to specify that the party travelling overseas with the children is limited to countries that are signatories to the Hague Convention. This refers to the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty that provides a process for returning children who have been abducted by a parent from one member country to another. It can also assist parents attempting to make contact with children who are overseas. There are 70 countries who are signatories of the Hague Convention, including Australia, North and South America and much of Europe.
If you have a good reason for wishing to travel overseas with your children, the issue is not covered in your parenting orders, and the other parent is withholding their consent, you can make an application to the Court. Your application must be supported by an affidavit setting out the reason for your travel and details of your proposed travel plan. You will need to satisfy the Court that you have sufficient ties with Australia, making it more likely than not that you will return. You may also be required to provide an undertaking to pay damages to any other party who is likely to suffer loss as a result of the order you are requesting. It is sometimes possible to increase your chances of success if you are willing and able to provide a monetary sum to the Court as security for your return with the children. If you are considering asking the Court to allow you and your children to travel overseas, Gordon & Barry Lawyers may be able to assist you with your application.
What happens if the other parent takes the children on holiday and they don’t come back?
Every separated parent’s nightmare is that their children will go away for a holiday with the other parent and not come back. It is important to remember that there are safeguards against this. If you are concerned about children being removed from Australia, you can apply to the Court for orders preventing a passport being issued to them or asking the Court to hold onto their current passport. The Court can also make orders that restrain the child being removed from Australia, including requesting that the child’s name be placed on the Airport Watch List maintained by the Australian Federal Police. This prevents the child travelling overseas no matter who is taking them, so if you later change your mind or wish to take the child overseas yourself, you will have to apply to the Court well before you travel to have their name removed from the list.
If the children are still in Australia, the first step is to try to talk to the other parent and see if you can convince them to return the children. If this is not possible, you can apply to the Court for a Recovery Order. This allows the Federal and State Police to become involved and return the children to you. If you don’t know where they have gone, the Court may grant you a Location Order which may assist you in finding them. When applying for these types of Orders, you will need to file an affidavit or statement of evidence giving details about your relationship with the children and the other parent, any issues of violence or abuse, the circumstances surrounding the removal of the children and any other information that may help the Court in making their decision.
Here at Gordon & Barry Lawyers we can assist you with identifying what important information needs to be included in your affidavit and application. We are experienced Family Law specialists and we understand how distressing and frightening this experience can be. We can help you to calmly and professionally state your case so that the Court can hear and understand your situation.
Conclusion
Despite the horror stories, it is important to remember that separated parents take their children on holidays and return them safely all the time. If your anxiety about what might happen is holding you back from letting your children enjoy the holiday of a lifetime, come and have a chat with us about what can be done to make the experience as safe and pleasant as possible for everyone involved.
We wish you a Merry Christmas!