How A Divorced Parent Can Legally Prevent Their Child From Being Taken Out Of The Country

One of the matters that divorce lawyers are often asked to advise on is when clients with children fear that their child or children are going to be taken overseas without their permission. This can be especially problematic if they believe the absent parent plans to take the children overseas and not return to Australia.

Thankfully, there are laws and legal processes available that can prevent children from being taken overseas. However, that does not negate the possibility that the absent parent may take the risk and try to do so anyway, which would be illegal and risk criminal prosecution.

If you are a divorced parent and wish to take action to prevent your child from being taken out of the country, you should only do so for legitimate reasons, such as a fear they will not be returned. Simply trying to stop your ex-spouse from taking your children on an overseas vacation as some retribution or to spite them achieves nothing other than denying your children that experience.

Understandably, divorces can generate all kinds of negative emotions, and it could be that you and your ex are completely alienated from each other to the extent that you only communicate via your respective divorce lawyers. Nevertheless, should you apply to a court to prevent the children’s other parent from taking them on an overseas vacation, you will fail unless you can show there are genuine grounds for your application.

Family courts do not count ‘spite’ or ‘retribution’ as valid reasons to prevent a parent from taking their children on vacation to another county, and it would only ever prevent that from happening if there was sufficient evidence to indicate that the parent had nefarious intent not to bring the children home.

If your fears are genuine and there is a clear indication that the children’s other parent was planning such an action, then the first step is to seek legal advice from your family or divorce lawyers. If they concur that there is a risk, they can apply to the Family Court for an order that will either,

  • Prevent a passport from being issued for your child/children
  • Prevent your child/children from being taken out of Australia
  • Require a person, usually the absent parent, to deliver both their passport and the child’s/children’s passports to the court

Let us look briefly at each of these.

Prevent a Passport Being Issued For A Child: This can be done via the court or by sending a child alert request to the passport office. Be aware that this may not be enough to stop someone from forging a passport, and it does not cover overseas passports issued from foreign embassies.

Passport Being Delivered To The Court: This would be done if the child has already been issued a passport and it is in the possession of the absent parent. Once delivered, the court will hold the passport until a subsequent order is issued allowing the child to be taken overseas.

Preventing A Child Leaving Australia: With this order, the child may be placed on the Airport Watch List by the Australian Federal Police. The child’s name will remain on that list until a further court order allows the child to travel overseas. If this occurs, you must request that the child be removed from the watch list to prevent you or the other parent from being unnecessarily delayed at airports.

How A Divorced Parent Can Legally Prevent Their Child From Being Taken Out Of The Country
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