As many who have caught the travel bug know, visiting new countries and expanding your horizons is both a fun and educational experience. The benefits to travel are innumerable, it provides invaluable learning opportunities regarding culture, history, food, people and language, and potential engagement with the children’s cultural heritage. After all, who doesn’t want to go to Disneyland or Lego World!
In the absence of any agreements between the parties, it is often up to a Judge to determine whether international travel with one of the parents is in the best interests of the children. This is not always an easy task. The judge has to take into account how long the proposed travel time is, whether the parent is acting in good faith, whether the time spent apart from the other parent will be detrimental to the child, whether the proposed country is dangerous for travel, and whether a parents’ promise of return to Australia will be honoured.
Concerns by the other parent are often genuine, however do still need to be substantiated. Whether the concern is that being away from their usual routine will cause distress to the child, or if during the school term, the missed time would impact their study, the Court will require evidence about the advantages and disadvantages of the travel. In today’s digital age where even the more remote areas are connected to the rest of the world, separation from the other parent is less of an issue. The children have the ability to keep in touch and update the other parent through internet calling and messaging services and the Court will take these factors into account.
One recent example of where the Court exercised discretion to permit travel is a case called Dawkins & Shore. In this case, the father proposed a month of travel with the two children aged 6 and 8. Risks of non-return was not an issue, and the proposed country was a Hague Convention country. The main concerns of the mother regarding the travel were unsubstantiated, namely that there was no evidence suggesting detrimental effects of missing three weeks of school, particularly as they have a long school life ahead. Despite the children having never spent more than four nights away from their mother, there was no evidence suggesting that it would be detrimental to spend a month away from the primary carer. The Judge found that the father was capable of caring for the children while travelling. Thus, in considering the factors of section 60CC of the Family Law Act, the Court determined that it was in the best interests of the children to travel with the father.
One recent example of where the Court exercised discretion not to permit travel is a case called Atuk & Atuk. In this case, the mother proposed travel with the two children, aged 14 and six, to her home country in the Middle East. At that time, DFAT’s travel warning advised that a high degree of caution was required when visiting and to reconsider travel to various cities and provinces of that country. Although the family had previously travelled to that country, and the mother’s primary reason to travel was for the children to visit their grandparents and engage with their cultural heritage, the evidence showed that there was no satisfactory guarantee that the mother would return the children to Australia, particularly as there was previous non-compliance with previous Orders. The Judge considered that travel in this case was not in the best interests of the children due to the high threat level of the country and risk of non-return.
Issues relating to overseas travel with children in serious and you need a specialist family lawyer to assist you. For example, where there are existing Parenting Orders, it is an offence to travel internationally with a child unless the Parenting Orders provide for the travel or there is specific consent (in a prescribed form) from the other parent. New laws are expected to come into force next year which make it an offence to take a child overseas if proceedings for parenting orders are pending.
If you need specialised family law assistance, call on Neilan Stramandinoli Family Law.
