Overseas holiday with children after separation- criminal responsibilities

By Jin Wang, Senior Associate

If you are planning to travel overseas with your child it is prudent to ensure you obtain consent from the other parent. There are unintended criminal consequences to a parent ( or another person ) taking a child overseas without the prior consent of the other parent, even during their allocated time with the child.

Section 65Y and 65Z of the Family Law Act 1975 (“the Act”) stipulates it as an offence for a person to take or send a child from Australia:

1. Contrary to an order limiting or preventing the child’s overseas travel;
2. Where court proceedings for a parenting order are pending.

On 24 April 2019, the Act was expanded to cover retention of a child overseas, without the consent of the other parent, where there are parenting orders in place (s65YA) or where proceedings are pending under the FLA (s65ZAA).

Penalty

These offences under the Act are punishable by up to three (3) years imprisonment.

Taking a child from Australia or retaining a child outside Australia contrary to an order of the court may also result in contempt of court.

Exception

There are two exceptions to the above:

1. If a person takes or sends the child to a place outside of Australia believes the conduct is necessary to prevent family violence; and
2. The conduct is reasonable in the circumstances as the person perceive them.

The evidential burden is on the defendant (person who takes the child) to satisfy the court the exception/s apply. Legal advice is essential if you consider your circumstances fall under either or both of these categories.

Ensure proper Consent documents are signed

Where consent is provided, it is important that it be documented in a proper manner.

Consent must be documented in writing in accordance with Regulation 13 of the family law regulations 1984 (Cth). Namely, the consent should be documented in a Statutory Declaration, the requirements of the authentication are:

1. Consent must be authenticated by an authorised person, for example:

1.1               Legal practitioner;

1.2              Justice of the peace;

1.3               Police officer;

1.4               Pharmacist;

1.5               Nurse.

2.   The authorised person is satisfied about the identity of the person signing the consent; and

3.   The consent was signed in the authorised person’s presence.

If you have intentions to travel overseas with your child, it is highly recommended that you discuss with a lawyer well before you intend to travel, to ensure travel is permitted.

Where consent is not available, proceedings can be issued and an application can be made to the court seeking the court’s permission to travel with your child.