It is important to understand that a parent needs the permission of the other parent before they can travel overseas with their child. Taking a child overseas without that permission, can be considered international parental child abduction (IPCA).
IPCA occurs when one parents takes or keeps their child overseas without the other parent’s permission or without a court order allowing them to do so. It usually happens in one of two ways:
- A wrongful removal. This is where one parent takes their child overseas without first telling the other parent and asking their permission.
- A wrongful retention. This is where one parent takes their child overseas with the knowledge and consent of the other parent, but then fails to return the child to Australia when agreed.
Under Australian law, parents are considered to have equal shared parental responsibility for their children. This means that both parents have equal responsibility for long term decision about their children, including where they will live. This means that a parent should have the other parent’s permission or an order of the court to remove their child from their place of ‘habitual residence’.
‘Habitual residence is a complex legal term. Usually, a child is habitually resident in the country in which they have been living. This is not always the case though. Sometimes parents disagree about which country the child is resident in and sometimes a child may have moved overseas very recently. This can make figuring out where a child is habitually resident difficult in some cases.
What if the other parent will not give me their permission to travel overseas with my child?
If you wish to travel overseas with your child and you believe that the other parent is unreasonably withholding their permission, you will need to seek permission from the Family Court to travel or relocate with the child overseas.
What if I want to prevent my child from travelling overseas?
If you do not wish for your child to travel or relocate overseas, there are different ways to prevent international parental child abduction. It may be possible to prevent an Australian passport from being issued by placing an alert with the Passport Office, which means that you will be contacted by the Passport Office if the other parent applies for an Australian passport. This won’t prevent the other parent from applying for an overseas passport.
Another way to prevent your child being taken overseas without your permission is to seek a court order placing your child on the Family Law Watch List. If that application is successful, then the Australian Federal Police can prevent your child from leaving Australia at the airport. If you fear that your child is going to be taken out of Australia without permission in the near future, you should seek legal advice urgently by contacting our Legal Service or your closest Family Court of Australia Registry.
My child is overseas without my permission, how do I bring them home?
Your legal options to seek your child’s return to Australia will depend upon which country your child is in. You might be able to make a return application under the 1980 Hague Convention on the Civil Aspects if International Child Abduction. If your child is in a country to which the 1980 Hague Convention does not apply, you may have legal avenues in that overseas country. You will need legal advice about your options from ISS Australia’s Legal Service.
If you would like to speak to one of our lawyers about any of the issues raised in this article, please contact our Legal Service on 1300 647 843 (dial 1), complete our interactive intake form or email firstname.lastname@example.org.