As international travel is set to resume after, nearly a two-year pandemic induced hiatus, we turn our attention to the law regarding traveling or removing a child from Australia. Unlike the words penned by virtuoso John Denver in his famous 1966 song, it is not as simple as “I’m leaving on a jet plane” and certainly not “I don’t know when I will be back again.”

Under the provisions of the Family Law Act, parents have a presumption of equal parental responsibility. This presumption remains until a Court orders otherwise.

When separated parents wish to travel internationally with their child or children, they must be aware of the Family Law Act 1975 Section 65Y, which prohibits a parent/guardian from removing a child from Australia unless:
1. It is done with the authorisation and written consent of each of the parents/guardian; or
2. A Court Order has been made to allow such to occur.

Violation or breach of Section 65Y is a criminal offence. The penalty can be imprisonment for up to three years.

The exemptions to Section 65Y depend on the circumstances but generally only occur when the person removing a child from Australia:
1. Believes it is reasonably necessary to prevent the child being subject to family violence; and
2. The conduct is reasonable in the circumstances as the person perceives them.

As previously mentioned, if a parent or guardian cannot agree and written consent is not granted, an application to the Court must be made. Such Court must have jurisdiction to make Orders in accordance with the Family Law Act. The Court will consider, when adjudicating on an application for international travel, inter alia the following:
1. If it is in the best interest of the child to travel internationally;
2. If there a risk of a child’s relationship being disrupted or terminated with the non-travelling parent during the time of travel; and
3. If there a risk that the child will be detained in a foreign country or, not being returned to the child’s primary place of residency.

It is my intention to write a further advertorial where I will examine the remedies available to prevent a parent from removing a child from Australia or, in extreme circumstances, commencing proceedings to return a child from an overseas country.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.