A common question a family lawyer is often asked by a parent, is what do they need to do to take their child away on an overseas holiday following separation.

To travel outside of Australia, a child needs a passport.

To obtain an Australian passport, the parent planning to travel overseas with the child can either make an application to the Department of Foreign Affairs and Trade (DFAT), or in the circumstances set out below, make an application to the Family Court.

Application to DFAT

The travelling parent must ordinarily obtain the consent of the other parent for the issue of an Australian passport. An application to DFAT may however succeed without the other parent’s consent in circumstances where:

1. Special circumstances exist;
2. The physical or psychological welfare of the child would be adversely affected if the child cannot travel internationally;
3. The child is required to travel due to a family crisis;
4. The other parent cannot be contacted within a reasonable period prior to travel; and
5. The child departed Australia less than 12 months prior to the application and DFAT considers the child requires a passport or travel document to return to Australia.

Application to the Family Court

In circumstances where:

1. The other parent objects to the issue of an Australian passport for the child;
2. There are existing Family Court orders in place restricting the child’s travel, such as an Airport Watchlist order or an injunctive order prohibiting the child’s overseas travel;
3. There is a good reason an application to DFAT is not appropriate; or
4. DFAT has already refused an application,

then in order to obtain an Australian passport for a child and be permitted to travel overseas with that child, the parent proposing to travel, must apply to the Family Court for appropriate orders.

Factors the Family Court will consider when deciding whether to make orders allowing a child to travel overseas for a holiday and for the issue of an Australian passport, are:

1. The length of the proposed stay;
2. Whether the application is made in good faith or for some ulterior reason;
3. The effect on the child of any deprivation of time with the other parent;
4. Any threat to the welfare of the child;
5. The provisions of Part VII of the Family Law Act 1975 and for children of a de facto relationship in Western Australia Part V of the Family Court Act

What if your child already has a passport and you are worried that the other parent may remove your child from Australia

If you are concerned the other parent is planning to take your child out of Australia without your consent, you can

make an application to the Family Court for orders to prevent that travel, including an order for the child to be placed on the Family Law Watchlist.

Once an application has been filed and sealed by the Court, then a further application can be made to the Australian Federal Police (AFP) by submitting a Family Law Watchlist Request Form to place the child on the Airport Watch List to prevent the child from departing Australia.