Arbon Legal Group

Can you go overseas with kids with proceedings in family court?

There’s nothing quite like a family holiday. For the children, it’s simply a chance to have fun.

For parents, it’s a chance to introduce the offspring to new people, places and things. It’s also a chance to create cherished family memories and traditions.

You must obtain your partner’s consent to travel overseas with the children.

But when relationships sour to the point where family matters end up in court, traveling with the children can be complicated – especially if you want to take them abroad. Here’s what you should know about going overseas with the kids while Family Court matters are pending.

Obtaining consent

The first and most important thing to keep in mind in these circumstances is that you must get permission to travel overseas with the children. Ideally, all you’ll have to do is make your spouse, partner or applicable guardian aware of your plans and obtain their consent.

If that doesn’t work, there is another option. You can also apply for a court order allowing you to take the child/children abroad.  If you choose to pursue this option, you should be aware of potential court delays and act accordingly.  Ideally, you should make this application at least six weeks prior to your departure date.

What the court will consider

Along with an application, you must file a sworn statement called an affidavit. At a minimum, it should include information about:

  • The details and reason for the proposed travel, including a copy of the itinerary (if possible);
  • the ties you and the child/children have to Australia;
  • whether the country you are visiting with your child/children is a member of the Hague Convention, or if any travel warnings have been issued;
  • your immigration status and your child/children’s immigration status;
  • your willingness and ability to provide surety;
  • any other pertinent factors.

To make a decision, the Court takes several factors into consideration. The most important of these is the risk that you will not bring the child/children back to Australia. 

Couple is divorced who handed their engagement ring to the divorce documents

Based on your specific situation, you may have to put up a cash bond that you will forfeit if you fail to bring the child/children back to Australia as ordered. Conversely, the Court will allow the child to accompany you if it determines it is in his or her best interests to do so.

Additional information about the security bond

If the court finds a security bond is necessary in your case, it will include relevant provisions in the order allowing you and your child/children to go abroad. These provisions generally include:

  • Terms of payment for a single trip: Namely, the length of time prior to the date of departure in which the bond must be paid and the funds cleared. Depending on the circumstances of your case, it may range from seven days to one month.
  • Terms of payment for multiple trips: If you are planning on taking your child/children overseas on multiple occasions, you may be required to put up a security bond payable each time the child travels, a certain amount of days prior to departure.
  • Restrictions on departure: Under some orders, the child or children will not be allowed to leave with you if you haven’t paid the bond.
  • The bond amount: Again, the exact amount will depend on your situation and the potential risk stemming from the proposed travel. However, it can generally range from $5,000 to $30,000.
  • The bond type: In most cases, a cash bond is required. However, a bond in the form of real estate may also be accepted in certain circumstances.

As per the court order, payment will be made to a trust account held by your lawyer or the non-traveling parent’s lawyer. In either case, the lawyer is legally prohibited from accessing these funds without appropriate authorisation. This means the money will remain in the trust account until the release of funds is authorised.

Provisions for release of bond

In addition to the provisions we’ve already mentioned, the court order issued in your case will include stipulations pertaining to the release of bond (if necessary).

Signing contract

These stipulations will determine when the money is released (a specific date) and where it goes. More often than not, it will be released upon the child’s return to Australia. However, you should be aware that these stipulations may also allow for some ‘wiggle room’ in circumstances such as late return due to unforeseen circumstances.

Depending on the relevant language in the provision, the money will be released to you (the traveling parent) if you bring the child or children back to Australia as ordered. If you fail to comply with the order, the non-traveling parent will get the bond money.

Under these stipulations, bond money released to a non-traveling parent due to your lack of compliance must generally be used to facilitate the child or children’s return to Australia.  This means it can only be used for travel costs, legal costs or any other relevant fees and costs incurred by the non-traveling parent while seeking the return of the child or children.

Don’t take any unnecessary risks

Finally, you should be aware that taking a child out of Australia or trying to do so without consent or a court order is a very serious offence. The punishment upon conviction is a maximum of three years in prison.

Arbon Legal Group

To find out how we can help if you have a pending Family Court matter and want to take your child or children overseas, contact us today.

Nicole Jevtovic
Nicole Jevtovic has worked in Family, Domestic Violence and Criminal Law her entire legal career. During her years as a divorce lawyer and criminal lawyer, Nicole has appeared in court on almost a daily basis. She has extensive experience in court advocacy and has even run trials herself as a solicitor advocate. While she enjoys court representation, Nicole aims to resolve her client’s matters in the most cost effective and stress-free way possible which is why she is an advocate for mediation and negotiation outside of court.
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