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18 December 2011

A seasonal warning – Santa Claus is coming to town but you may not be going anywhere.

Contemplating holiday travel with the kids? Do you have court orders about parenting? Are you paying child support?

Contemplating holiday travel with the kids? Do you have court orders about parenting? Are you paying child support?

Well, you would never live it down if you got to the airport and either you or the children weren’t allowed to travel out of the country.

Section 65Y(1) of the Family Law Act 1975 requires that where a parenting order is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, such a party, must not take or send a child the subject of those orders outside Australia, except as permitted by the legislation. And, in case you think this provision is not taken seriously, then bear in mind that the penalty for breaching this section of the Act is 3 years imprisonment.

Travel is allowed under section 65Y(2) where there is written consent from each person in whose favour the order was made, or where the travel is in accordance with a court order made at the time of or after the making of the parenting order. That means if you and your ex-spouse have court orders about living arrangements for your children, then you have a parenting order and you must have the other parent’s consent to travel even if the children have current passports.

Written consent or an order allowing travel gets you over the first hurdle.

But do you remember what you agreed to when the orders were made?

Parenting orders frequently allow parents to take their children overseas provided the children are not taken to a country that is not a signatory to the ’Hague Convention’. This is the international agreement whereby ratifying countries co-operate to ensure the return of children wrongfully removed from their normal place of residence. Orders might also prevent travel to a country in respect of which the Department of Foreign Affairs has issued warnings to ’not travel’, ’reconsider the need to travel’ or ’exercise a high degree of caution’ when travelling.

So you’re not going to Burkina Faso [does anyone go there?] or some well-known war zone, but it’s still wise to check the Department of Foreign Affairs’ list of travel warnings.

Many people don’t expect to have a problem travelling to Bali for a beach holiday with their kids but the Department says to ‘exercise a high degree of caution’ when travelling to that destination. Depending on the wording of your orders, that might mean that you have to cancel your trip to Bali with the kids; and let’s hope you find out that information before you get to the customs barrier.

It’s not unheard of that both parents are agreeable to children travelling to a destination without realising that there is some degree of travel warning associated with the destination. That problem cannot be overcome by written consent as an order is an order until it’s changed.

If you check out the travel warnings, you might see that Japan is considered safe at the moment. That’s great if Bali is out but it’s still really important to check your court order.

If the order says that you can’t take the children to a country that’s not a signatory to the Hague Convention, then it is important that you realise that a number of nations that are very friendly with Australia, are not signatories to the Hague Convention. Japan is one of these countries as well as being a popular destination for Australians. Strangely enough Burkina Faso is a signatory. Go figure!

The best advice we can give is that you check your court order, and if you are not sure, seek advice as to what it really means and where you can go. If you’ve lost your order, or can’t find a copy then it’s well worth obtaining another copy from the court. You don’t want to be in the same position as our unfortunate client last year who had to forfeit tickets for herself and her daughter to travel to Bali because she had agreed not to take the little girl to a country where there was a ‘high degree of caution when travelling’ recommended. Ultimately, she enjoyed a lovely holiday along the Great Ocean Road but that was not the destination she had in mind when she spent money on tickets to Indonesia that then went to waste.

And, lastly, possibly the greatest cause of embarrassment for a travelling parent: being prevented from travelling with your children because the Child Support Agency has issued a Departure Prohibition Order against you. This may occur where there are long-term or substantial arrears of child support owing.

The Child Support Agency will take all other steps before this last resort option but if you have moved and haven’t updated the Agency with your new address, they can still issue a DPO. The first time you hear about it might be at the airport. Obviously, the best advice is to keep up-to-date with your child support payments.

So if you have travel plans this Christmas, you’d better be making a list and checking it twice before packing your bags.

And, remember that family law team members of Cooper Grace Ward are close at hand and available to help with any problem you may have during the holiday period. Call us on 07 3231 2444.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Craig Turvey
Special Counsel

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