19 Dec Navigating international travel with kids after a divorce or separation.
During holiday periods, many families plan time away together. School terms pause, workplaces slow down, and travel becomes a natural way to step out of everyday routines.
But if you’ve separated from the parent of your children, travelling might feel a little bit more complicated. In many cases, you can’t simply book a flight and pack your bags. There are legal considerations and emotional discussions to be had. And this is particularly true for international travel.
Nobody wants their Christmas marred by cancelled holidays, legal disputes or worse. So, we’ve put together a checklist of your to-dos to make travelling with kids after a divorce or separation as smooth as possible.
Including international travel in parenting agreements
If you are still in the process of negotiating a parenting agreement, that’s great, because you can still be sure to address how international travel will be handled from the outset. Clear provisions can help prevent disputes at the very time families are hoping to plan ahead or respond to important events.
A well drafted parenting agreement should include requirements around written consent, timeframes, passport arrangements, travel duration (or limits) and how itinerary details are shared. It should also cover make up time upon return and how costs are allocated.
For families with relatives living overseas it’s also a good idea to include provisions that allow for international travel for significant family events such as weddings, funerals or cultural obligations. These are often overlooked during negotiations when parties assume the other parent will be happy to allow travel in those circumstances. But unfortunately, as time moves on, they often aren’t. And you don’t want your child to miss out because you failed to take those situations into account.
Taking the time to address international travel early can reduce uncertainty and help both parents approach future travel planning with greater confidence and clarity.
Checklist for travelling with kids after a divorce or separation
Consider your children’s best interests
Regardless of the situation between two co-parents, planning a holiday with your children should never be used as an opportunity to retaliate against the other parent. The focus should always be on what’s best for your kids. Of course, despite best intentions, trouble about agreeing what is in your child’s best interests can be tricky.
You may be trying to preserve old traditions or start new ones. Your children may be yearning to see faraway relatives. Or you may simply have a memorable adventure planned for them. Check in with yourself to ensure your travel plans are for the right reasons and the more open communication you have with your ex the better.
Whether it’s your first Christmas as a split family or your 10th, this time of year can bring up big emotions for everyone involved. Also consider the other parent’s feelings as they are left behind.
When travelling with kids after a separation or divorce, never speak disrespectfully about the other parent or share personal conflicts. Instead, aim to be a calming, stable presence for your kids this holiday period.
Check existing parenting arrangements
Before making any travel plans, it’s important to understand how your existing parenting arrangements apply during holiday periods. Parenting agreements, court orders and consent orders often (and should) outline how two separated co-parents will navigate the responsibilities of parenting. They should cover a wide range of matters, including international travel, restrictions on international travel or clauses such as advance notice periods and make-up time.
If you have a parenting order that stipulates where and when your children can travel internationally, you must follow those agreements to the letter. Breaching your agreement can have serious consequences, including contravention proceedings and even criminal liability if you take your child outside of Australia contrary to those agreements or orders.
However, if there has been a significant change in circumstances to warrant an amendment (which is the legal requirement for an amendment), you can either negotiate an amendment if you have a private parenting agreement, or you may apply to Federal Circuit and Family Court of Australia for amendments to your parenting orders.
Of course, if a DVO stipulates that one parent cannot be within proximity to the children, this parent will not legally be allowed to travel with the children.
Begin discussions early
Early and open communication is key to avoid miscommunications and misunderstandings. If you and your ex-partner have an amicable relationship, start by having a conversation around intentions and expectations. The goal is for each party to feel heard, while always keeping your eye on what’s in the best interests for your children.
Some topics to discuss might be:
- Travel dates
- Day-to-day itinerary
- Transport methods
- Accommodation arrangements
- Who is travelling with you
- Who will be covering the costs
- Contact methods and contact schedule with the other parent
- Emergency contacts for the children
- Plans in case of travel delays or cancellations
- Plans in case of sickness or injury
- Make-up contact time with the non-travelling parent
Remember, it’s also important to discuss your plans with your children ahead of time. Let them know who they’ll be with and when, and invite them to share any worries. It’s vital they’re on board with your plan.
Secure written consent
If you want to travel internationally with kids after divorce or separation, and this hasn’t already been covered in your current parenting arrangements, you need either a court order granting permission or authenticated written consent from anyone with parental responsibility.
If you don’t have these but still travel, you will face very serious penalties. It’s also considered a criminal offence to travel internationally if there’s a pending application with the Courts.
If you do get authenticated written consent from your ex, it must include:
- The children’s names and dates of birth
- Trip information, for example travel dates, destination, flight information, accommodation
- The travelling parent’s contact information
- Emergency contact information
- Court order information
- A signature from the person giving consent
- An authorised person who witnessed the signing and is satisfied about their identity
What to do if one parent refuses to give consent
Even where parenting orders allow for international travel disputes can still arise. This most commonly occurs when one parent is required to obtain the other parent’s consent and that consent is refused or delayed.
If one parent refuses to give consent, it’s wise to consult with lawyers as early as possible, and our team is certainly here to help. There are several pathways available to resolve the issue depending on the circumstances and urgency of your situation, including:
Mediation: The first step is typically to try mediation. This process aims to support both parties to reach an agreement.
Court intervention: If mediation fails, you can apply for a court order granting you permission to travel with your children. Or alternatively, an order that prevents your ex-partner from taking your children overseas.
The Court will take into account factors such as the destination, the itinerary and the risk of the children not returning to Australia. The Court will determine if the trip is in the best interests of the kids.
Family Law Watchlist: If you’re the parent refusing to give permission, you can also apply to have your children added to the Family Law Watchlist. If approved, the Australian Federal Police will prevent your children from being taken unlawfully out of the country.
Ensure all passports are valid
Of course, all travelling parties also need passports. For children, this typically means securing both parents’ signatures on their passport application.
If one parent is refusing to give written consent to the trip, it’s likely they’ll also refuse to sign the passport application. In this case, the travelling parent will need to apply for court intervention.
Alternatively, the non-travelling parent can apply for a court order that prevents a passport being issued to the child or requires that the current passport is delivered to the Court.
Plan for the unexpected
If you’re travelling with kids alone after a divorce or separation, the responsibility falls on you, and with travel and children the one thing you can count on is that something unexpected will happen.
To help have a smooth process first make sure that you’ve come to an agreement with the other parent about what to do in case of travel delays, cancellations or if a child gets sick or injured. Then ensure you have all important documents, including:
- Written consent from the other parent
- The children’s birth certificates
- Court orders or adoption papers, if relevant (especially if surnames are different)
- Any other documentation required by the country you’re visiting (check entry requirements for children travelling with one parent)
- Vaccination records
- Emergency contact information
- Medical action plans, if relevant
- Travel insurance information
Consider the destination carefully
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is a treaty between Australia and a number of other countries. It means that if your child is taken without consent to (or not returned home from) one of these countries, there is a lawful process for you to demand their return to Australia.
If a parent is planning to take the children to a country not in the treaty, the risk of non-return is higher. This means higher safeguards and stricter agreements.
Seek legal advice when travelling with kids after separation
When it comes to travelling internationally with kids after divorce or a separation, an experienced family lawyer can provide crucial support and expertise. As specialists in children’s issues, our team will always ensure the children’s best interests are protected.
If one parent is refusing to give written consent or sign a passport application, we can help move the process along. Alternatively, we can also help you to prevent the other parent from taking your children overseas. We offer legal guidance through disputes, draft consent orders, advise on court orders and submit urgent applications.
Travelling with kids after a divorce or separation doesn’t have to be stressful. We want you to achieve the best possible outcome, while preserving the magic of the holidays for your children.
Get in touch with Toomey Family Law today.