Just when you thought it was safe to travel with your kids……….

Imagine, you have been through the stress of a Family Court dispute, orders have been made about your kids, life seems to arranging itself to the new normal and you decide to take your children on a lovely holiday to Bali to relax.  You have the children’s passports, it’s their time with you during the school holidays and you think nothing of going to Bali with the kids for a week.  However, the Court has not made orders allowing you to travel overseas.  Enter the often surprising section 65Y of the Family Law Act 1975 (Cth).

Section 65Y of the Family Law Act 1975 (Cth) essentially prevents a parent from removing a child from Australia unless:

  1. It is done with the consent in writing (authenticated as prescribed) of each parent (or guardian); or
  2. It is done in accordance with a Court order.

The Act notes that a breach of this section amounts to a criminal offence and is punishable by three years imprisonment.

In short, you require an order of the court to travel outside Australia with your children to rule out the possibility of being charged with an offence.

In the case of Saunders & Saunders [2010] FamCA 1120 orders were made in 2005 for the mother to travel to Thailand with the children for a holiday.  In addition to travelling to Thailand, the mother travelled with the children to new Zealand and Hong Kong in 2007 and 2010.  After travelling with the children, the mother made an application to the court to renew the children’s passports without the father’s consent in 2010.  During this hearing the mother told the Court of her previous travel which gave rise to the possibility the mother being prosecuted for breaching section 65Y. The mother’s lawyers were required to obtain a certificate under section 128 of the Evidence Act (Cth) to protect her from self-incrimination and being charged with a criminal offence. The Court considered the impact of the travel on the children’s relationship with the father and held that the travel to New Zealand and Hong Kong had not adversely affected their relationship with their father.  The mother was not charged with breaching section 65Y of the Family Law Act and no subsequent was taken.  The mother told that Court that she and indeed her solicitor, were not aware that she could not travel overseas with the children. Justice Ryan noted that “Section 65Y does tend to take people by surprise.”

In the case of B v R [2015] NSWCCA 103, the NSW Criminal Court of Appeal heard a case where the mother had fled the country to Amsterdam during Family Law proceedings.  The mother stated that she believed the father was sexually abusing the child and that she was fearful the Family Court would order the child to spend unsupervised time with the father.  She stated the only option she thought had was to flee the country to protect the child.  She also stated that she was concerned the father would commit familicide.

The mother was arrested in Amsterdam and extradited to Australia. She served eight months in prison while awaiting extradition and trial.  The allegations against the father were not substantiated by the trial judge or the Court of Appeal and no charges were laid against him.  The Family Court made orders for the child to live with him.

If you find yourself in this situation, where you have already been through the Family Courts or are in the process of finalising a parenting matter, you will need to make an application to the Court for an overseas travel order, unless the other part consents to the period of travel proposed.

The Court will then consider the following questions:

  1. Is it in the best interests of the child to travel overseas?
  2. Is there a risk to the child’s relationship with the non-travelling parent?
  3. Is there a risk that the child will be detained in a foreign country and not be returned to Australia at the conclusion of the trip?

If the Court is satisfied that the travel is in the child’s best interests, it will not interfere with the child’s relationship with the other parent, and there is no risk of the child being detained in a foreign country, it is likely a travel order will be made.  However, if the Court is concerned about the travel and any other discretionary matters it considers relevant, the Court may place the child on an Airport Watch List.

An Airport Watch List Order prevents a child from being removed from Australia.  This order is usually made for a period of two years, but in some cases can last until the child is 18 years old.  Once a child’s name is on the Airport Watch List, their name cannot be removed unless by Court Order.  A child will not be permitted to travel overseas where an Airport Watch List Order is in place unless an Order of the Court is made either removing the child’s name from the Airport Watch List or permitting travel for a specified period of time.

If you are concerned that your travel plans may be in breach of section 65Y, please do not hesitate to contact our office on 9320 3900 to discuss your matter, prior to travelling.

By Sarah Damon

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