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Overseas Travel for separating families

Podcast Episode by Pearsons Lawyers
6 April 2021

(Transcription)

Leanne Abela:
Hello. I’m Leanne Abela.

Joe Schepis:
And I’m Joe Schepis.

Amanda Vella:
And I’m Amanda Vella.

Leanne Abela:
You’ve got all three of us today from Pearsons. So very privileged. So welcome to Pearsons Family Law podcast. Today’s topic is…

Amanda Vella:
What happens if my partner is thinking of taking the children overseas without my consent. And we’re also going to be talking about how can I stop my partner from taking the children overseas if I don’t want them to go overseas. And especially now during COVID times, it’s even more important because once someone leaves the country, it’s almost sometimes impossible for the children to come back to Australia.

Leanne Abela:
That’s right. I think we should also cover what if I do want to take the children overseas? So what if I’ve got family overseas or I’m from another country, et cetera. What about taking the children overseas? So what about if you start with that one? So how do I get to take my children overseas?

Joe Schepis:
So the first thing we do is we write to the other parent and notify them and say, “This is what my proposal are. This is where I’m going. This is how long I’m going for and this is what I propose as far as things like make-up time might be concerned.” Make sure that the other parent is fully aware of where you’re going and what you’re intending to do.

Leanne Abela:
Well, an itinerary, right?

Joe Schepis:
Yeah, an itinerary seem like-

Leanne Abela:
Contact number.

Joe Schepis:
Yeah. Before you make the plans, because if there’s difficulties that might be that you spent your money and it might be a waste of money. So before you go spending the money, when you’ve got the idea formed in your mind that you want to go on a holiday, let the other parent know what you’re doing so that they can have some involvement. They are after all the other parent, they’ve got some say.

Amanda Vella:
I think one of the major issues that I come across, and let me know if you’ve come across this as well, is the issue of passports. So before anyone ever even goes overseas, do the children have valid passports? And often that’s a reason why people are stopped from going overseas because they don’t have a valid passport. And you need the consent of both parties to sign the passport application.

Leanne Abela:
That’s right. So, I mean, if you need the passport and the other person’s being difficult, you can get a court order for a passport to be signed.

Joe Schepis:
Yeah.

Leanne Abela:
The court will do that, but you got to have good reason to travel overseas of course.

Joe Schepis:
And what some clients may not understand, is that a valid passport, you need to have at least six months of time on the passport before it expires.

Leanne Abela:
That’s right.

Joe Schepis:
If you’re traveling overseas.

Leanne Abela:
They forget that, don’t they?

Joe Schepis:
They do forget that. Very easy to forget.

Leanne Abela:
Or they book the return ticket. They’ve paid the travel agent. They realize they don’t have a passport. And I want you to kind of walk on water to get them, to be able to travel overseas. We can get an abridgment of time to enable an urgent hearing, but it’s always good to be well-prepared, isn’t it.

Joe Schepis:
Yeah.

Amanda Vella:
Yeah. And let’s say we have emailed the other side and said, “This is the itinerary, this my proposal.” And for whatever reason, they’re saying, “No, you can’t go overseas.” Clients then say, “What is the likely…” And then we issue the application into court. A good question to ask yourself is, “What is the likelihood of the judge saying, yes, the children can go overseas?” And in my experience, I find that the courts will always start off by saying that international travel is good for the children and will grant it unless there is a reason why the children may not come back.

Leanne Abela:
That’s the risk factor. So, often it’s the kids are going on a soccer camp overseas, or they’re going with their school on a language or an art or a culture experience with their school. Well, of course the court is going to promote that and want that. And in those instances, often the parents aren’t even going. So the court’s not going to deny a child that experience.

Joe Schepis:
The way the court starts, is by saying the child should have the same experience they would have if they were an intact family. So if the child will be going if the parents were together, well, then there’s no reason why the child or the children shouldn’t be going just because the parents have separated. So that’s how the court starts off with the inquiry. Obviously it’s a complicated manner if the parent is proposed to take the children, to what we call a non-Hague Convention country. That presents a whole host of other issues and problems and concerns, which the court has to then delve into and explore. And in those cases, the court may want the parent who’s traveling, to put up a bond or some sort of funding, some guarantee, that in the event that the parent who is traveling doesn’t come back, the other parent can access those funds to try and get the children back.

Amanda Vella:
One of the most popular countries that is not on the Hague, I find, is Bali.

Leanne Abela:
Absolutely.

Amanda Vella:
So that’s really important. And to find a list of-

Leanne Abela:
I guess we should explain what the Hague Convention is. I mean, Hague Convention country is a country Australia has a legal agreement and relationship with, in so far as the Commonwealth of Australia will notify that Hague Convention country and they will honor any orders or directive of Australia to get those children back.

Joe Schepis:
So it’s a political process-

Leanne Abela:
Political process.

Amanda Vella:
Treaty.

Leanne Abela:
Yeah, it’s a treaty.

Joe Schepis:
… where it’s a treaty, it’s an understanding between two countries, where if a child is removed from Australia to a Hague Convention country, through the authorities called the Central Authorities, they will arrange for the children to come back to their natural country, which would be Australia in that case.

Leanne Abela:
So it really is, I do you think the most common that you’ve dealt with, are Lebanon and Bali, like Indonesia.

Joe Schepis:
Yeah.

Amanda Vella:
Mm-hmm. Yeah.

Leanne Abela:
They’re probably the two highest numbered countries that we deal with often. And so that’s part of that risk assessment, isn’t it? That the court’s going to say, “Well, hang on. What is the risk of these children not being returned?” And so what do you think the court looks at? Real estate? Do you own real estate in Australia or is it real estate in Lebanon? Or in Indonesia?

Joe Schepis:
Employment.

Leanne Abela:
Employment? Do you have a good job here? Is it likely you’re going to leave that job to be able to take the children over there? And what are your family connections in those other countries? If all of your family were in those other countries, if you have no job and if you have no property here, well, you may be seen as a bit of a risk, particularly if there’s no real reason to leave, because what’s going to keep you back here. That’s the problem.

Amanda Vella:
It’s really your connection to Australia.

Leanne Abela:
That’s right. And look at how strong that connection is.

Joe Schepis:
And your connection to the overseas country. I mean, if you’re not a resident in the overseas country, well, you’re not going to be able to stay there. So you’re going to have to leave at the end of the period, so.

Leanne Abela:
If you’ve got dual citizenship

Joe Schepis:
If you’ve got dual citizenship, yeah.

Leanne Abela:
… then that’s going to be risky, but it’s always worth having a go, isn’t it.

Amanda Vella:
Absolutely. Yeah.

Joe Schepis:
Always ask inquiry and just make sure that it’s explored fully. So the other question is how can I stop someone from traveling overseas with my children, if there’s a risk that they won’t return?

Amanda Vella:
Yeah. So the best way to stop, is to issue straightaway into the family court. And at the same time, you would also issue an airport watch list with the Australian Federal Police. So there is a form online that you’ve got to fill out, that of course we can help you with. And you’ve got to explain to the Australian Federal Police the risk, and also provide them with a copy of your application to the family court. So what that does, is once that application to the federal police has gone through, if your partner is trying to leave the country with the children, then there’ll be an alert coming up at customs that will stop them from leaving.

Leanne Abela:
And that happens quite often, doesn’t it?

Amanda Vella:
Yeah.

Joe Schepis:
In some cases, the courts have made orders and airplanes have been turned around mid-flight to return children to Australia, so.

Leanne Abela:
Well, what about you get a call from a client they’re at the airport and they didn’t even realize the watch list was on for whatever reason and they can’t get out of the country. So yeah, it’s a pretty common order, isn’t it? Actually.

Amanda Vella:
Yeah. Definitely.

Leanne Abela:
And it is an application that you can make either through your lawyers or you can actually do that application yourself directly to the court.

Amanda Vella:
Yes.

Joe Schepis:
You can avoid a lot of trouble, a lot of grief, a lot of uncertainty and a lot of expense, by having pre-planned these sort of holidays. Explore them fully. Be transparent about it and have it all pre-planned, so there’s no surprise at the end of the day. If the other party has agreed to you traveling or you have agreed to them traveling, and everyone knows what’s happening, then there won’t be any problems. It’s only when people start to make plans without notifying the other parent. That’s where things come unstuck.

Leanne Abela:
But if you want some more information on overseas travel and how to restrain someone from going overseas with the children, go to our webpage, Pearsons Family Law, and you’ll see an article specifically on this topic of traveling overseas, and that will assist you in being able to know what your next step is. So, and also feel free to make an initial appointment with us at Pearsons by calling 1300 699 688, for that free appointment with any one of our mini-solicitors who work at our firm. So for now…

Joe Schepis:
Thank you for listening.

Amanda Vella:
Thank you.

Leanne Abela:
Thank you.

Pearsons Family Lawyers

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