Can I Travel Overseas with My Child After Separation?

Legal Rights & Restrictions Explained

Understanding Parental Travel Rights

When a relationship ends, parenting arrangements become one of the most sensitive and contentious issues, especially when one parent wishes to travel overseas with the child. Whether it’s for a holiday, a family visit, or a permanent relocation, strict legal requirements exist to ensure that international travel is in the best interests of the child and does not disrupt their relationship with both parents. Missteps in this process can have serious legal and emotional consequences, making it critical to understand your rights and obligations under Australian family law.

Consent for Overseas Travel

If you are planning to travel overseas with your child, you must obtain written consent from the other parent or any person with parental responsibility. This is not just a courtesy but a legal necessity.

What Happens If the Other Parent Refuses Consent?

If the other parent refuses, you will need to apply to the Federal Circuit and Family Court of Australia for permission. The court will assess various factors, including:

• The duration and purpose of the travel
• The child’s ties to Australia
• The impact of the trip on the child’s relationship with the non-travelling parent
• The destination country’s legal framework regarding child abduction

Example Case: Quigley & Yates [2024] FedCFamC1F 723
A father sought to take his child overseas for a two-week visit to extended family. The mother opposed the trip, citing concerns about the child’s return. However, the court approved the request, citing the father’s strong ties to Australia and the fact that the destination was a Hague Convention country, which reduced the risk of wrongful retention.

Preventing Unauthorised Overseas Travel

If you suspect that the other parent may take the child overseas without your consent, there are legal steps you can take to prevent it.

Legal Protections Available:

• Court Order Preventing Passport Issuance → You can apply to prevent a passport from being issued.
• Request for Passport Surrender → The court can require the child’s passport to be surrendered.
• Airport Watch List Order → This ensures that Australian Border Force officers are alerted if the child attempts to leave the country.

Example Case: Nemcova & McLeod [2024] FedCFamC1F 752
The mother sought to relocate the children to the United Kingdom, arguing that her support network was stronger there and that it would be beneficial for her mental health. The father opposed the relocation, arguing that it would sever the children’s relationship with him. The court ultimately permitted the relocation, finding that the benefits to the mother outweighed the risks to the father-child relationship, particularly given the availability of modern communication methods and scheduled visitation.

What If a Child Has Already Been Taken Overseas Without Consent?

If a parent has already taken a child overseas without permission, legal remedies exist to seek the child’s return.

Hague Convention on International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction provides a framework for recovering children unlawfully taken to or retained in another signatory country. However, the process is not always straightforward.

Example Case: Director-General, Community Services Directorate & Moroz [2024] FedCFamC1F 642
A parent wrongfully removed the children to Türkiye, and Australian authorities sought their return. However, the court ruled against the return, citing concerns about:

• Family violence
• The mother’s custodial rights under Turkish law
• Potential criminal consequences she faced in Türkiye

This case highlights how courts carefully balance legal frameworks, child welfare, and parental rights when handling international abduction cases.

Obtaining a Child’s Passport Without the Other Parent’s Consent

Even something as seemingly simple as obtaining a child’s passport can become contentious if one parent refuses to provide consent.

What to Do If Consent Is Refused?

• Apply to the Department of Foreign Affairs and Trade to issue a passport under “special circumstances.”
• Seek a court order compelling the issuance of a passport.

Courts assess whether granting the passport aligns with the child’s best interests, weighing factors such as:

• The potential risk of non-return
• The purpose of travel
• The strength of the child’s connection to Australia

Relocation: Moving Overseas with a Child After Separation

Relocation cases add another layer of complexity. If a parent wishes to permanently move overseas with the child, they must either:

• Obtain consent from the other parent, or
• Apply for a court order

Key Factors Courts Consider in Relocation Cases:

• The child’s connection to extended family in Australia and overseas
• The impact of relocation on the child’s emotional and psychological well-being
• Whether suitable arrangements exist for the non-relocating parent to maintain a meaningful relationship
• Financial implications, schooling, and language barriers

Example Case: Henderson & Kane [2024] FedCFamC1F 788
A mother sought to relocate with her child to France, citing:

• Employment opportunities
• Support from her family

The father strongly objected, arguing that relocation would severely impact his relationship with the child.

The court ultimately denied the request, emphasising that the child had:

• Strong educational and social ties in Australia
• Alternative employment opportunities existed locally

Final Thoughts: Navigating International Child Travel & Relocation

The legal landscape surrounding international child travel and relocation is complex and highly fact-dependent.

At Jameson Law, we understand the stress and uncertainty these cases can bring.

We can help with:
✅ Applying for travel orders
✅ Preventing wrongful removal
✅ Seeking the return of a child under international law

Seeking legal advice early can make all the difference in protecting your parental rights and ensuring the best outcome for your child.