In this episode, I discuss restraints against travelling with children, including whether such restraints can be made in relation to travel within Australia. I also discuss the Australian Federal Police Family Law Watchlist.
Travel restraints
International travel restrained by default
As I discussed in earlier episodes, once a parenting order is in place in relation to a child, or even an application has been made in relation to a child, the default position is that it’s an offence to remove the child from Australia without a court order or authenticated written consent of the other parties.
In effect, a restraint is automatically in place as soon as a parenting application is filed. That means it’s not really strictly necessary to apply for a restraint against another party, or another parent, taking a child outside of Australia. However, for practical reasons, it’s generally a good idea to seek an express order if a client wants to restrain the other parent/party from travelling, and I address that further below in relation to the AFP’s Family Law Watchlist.
Injunctions in parenting proceedings
The power to order an injunction in a parenting case is found in Section 68B of the Family Law Act. When one looks at its subsections, it quickly becomes clear that a travel restraint must be made on the basis of the personal protection of the child.
There is no default restraint against travelling with a child within Australia. In other words, parents are generally at liberty to travel within Australia without any permission being required from the court or another parent. That makes sense, because as long as the child remains within Australia’s borders, it’s within the reach of the court. That means the court can, in appropriate cases, make a recovery order, and the Australian Federal Police can execute a recovery order.
However, as I mentioned earlier, the court has power to make injunctions under Section 68B. It’s possible to apply for a restraint against travel within Australia, whether it’s restraining a parent from removing a child from a particular geographic area, or restraining a parent from taking a child to a particular geographic area. But the court would need to be persuaded that that restraint is necessary for the personal protection of the child.
From the cases that I’ve read, that power is usually only exercised in relation to permanent relocations, rather than short-term travel. In fact, a lot of the authorities about relocation have a carve-out specifically for short-term travel.
Australian Federal Police Family Law Watchlist
Returning now to international travel, the Australian Federal Police maintains the Family Law Watchlist, which is also sometimes referred to as the Airport Watchlist. When a child is on the Family Law Watchlist, and the child is about to leave Australia – typically when the child is taken through passport control at an airport or a seaport – the Watchlist automatically triggers an alert to the AFP, and, generally, that will mean the child cannot travel through passport control, and won’t be allowed to leave the country.
How to add a child to the Family Law Watchlist
There are generally two ways to request that a child be added to the Family Law Watchlist:
When a court makes an order restraining a parent from taking the child overseas, that is usually coupled with a request in the order that the child be added to the Family Law Watchlist. The registry of the court which has made the order will typically communicate that request to the AFP on the same day, and the AFP will then action it. There’s no need for the party, or their lawyer, to communicate with the AFP. The court manages that process.
The other way is for a party, directly, to request that a child be added to the Watchlist, and the AFP has a form for this on its website. That form needs to be submitted together with a copy of either the order restraining the travel, or an application for an order restraining the travel. That’s really quite a powerful thing, because it means that, before the other party has even been served with the application, let alone a court having made any determination, a child can already be added to the Watchlist.
Technically, in my view, any application for a parenting order ought to be sufficient to add a child to the Watchlist, given the provisions of Section 65Z, but the AFP’s form specifically requires an order, or an application for an order, restraining the removal of the child from Australia. On a practical level, the AFP’s position makes perfect sense to me. If one parent is going to place the child on the Airport Watchlist, they really should be squarely putting the other parent on notice of that, and giving them the opportunity to resist that application, and to seek permission to travel overseas with the child.
Abuse of the Watchlist
Unfortunately, the self-help option, where a party can request that the AFP add a child to the Watchlist upon the filing of an application seeking a restraint against international travel, is vulnerable to abuse. A recent example of this is Brasch J’s decision in Robinson & Heyden [2026] FedCFamC1F 67. In that case, a Judge in Division 2 had, fairly recently, made final parenting orders, including that:
the father have sole decision-making responsibility for the child;
the child live with the father; and
the child only spend time with the mother in accordance with the child’s wishes.
The father was planning to relocate overseas with the child, back to his home country. The mother then issued an application seeking a travel restraint, and immediately requested that the child be placed on the Watchlist.
Brasch J found that, given the final orders that had been made, the father was at liberty to relocate internationally without the mother’s consent, and without a further order. Her Honour ultimately found that there was no basis to reopen the case under Section 65DAAA, and, therefore, dismissed the mother’s application, and ordered that the child be removed from the Watchlist.
To protect against further abuses of the Watchlist by the mother, Brasch J also made a specific order giving the father liberty to apply at short notice, including on weekends and after hours, directly to her Honour’s chambers.
In this episode, I discuss travel applications. Those are applications by a party to take a child outside of Australia for the purposes of short-term travel. I also discuss some related passport issues.
Default position
It’s important to be aware that the default position for a child, who is subject either to an extant parenting order or an application for a parenting order, is that you’re not permitted to remove them from Australia, except pursuant to a court order, or with authenticated written consent of every other person who is party to the extant order, or the extant application. I covered that in some detail in the previous episode, so check that out if you haven’t seen it.
Travel applications
Travel is important for many Australian families. We’re quite an isolated country geographically, and many, many of us are immigrants. Many more are descended from immigrants, and still have ties to family, culture, and language overseas, and want to keep those ties alive for their children.
Because many families have two parents who are descended for migrants, or who are migrants, it’s often a matter of consent to have travel provisions in orders, because both parties are motivated to be permitted to travel, as long as certain conditions are met. In the previous episode, I discussed some considerations for when you are drafting travel orders.
Sometimes, there are circumstances where one party wants to travel with a child and the other doesn’t consent. That’s where travel applications come in.
Timing considerations
It’s often very important to turn your mind to timing issues in relation to travel applications, particularly when it’s a discrete application for a particular trip. You need to factor in the usual lead times, particularly when you’re filing an Application in a Proceeding. You have to then wait, usually for a mention before a Judicial Registrar who doesn’t actually have the power to determine the travel application. Then, from that hearing, you then get a listing to a defended interim hearing before an officer who does. That can cause a significant delay, so factor that in when talking to your client about when they want to travel, and what are realistic timeframes to get a matter on to permit the travel.
Of course, there are sometimes urgent circumstances that motivate a party to want to travel with children. Say, for example, a child’s grandparent overseas is terminally ill, and is expected to pass away soon. The parent may really want to take the children to see their grandparent before they pass away. In those cases, you really need to think about the urgency of the application, and the usual processes to seek for an urgent hearing and an abridgement of time for service apply.
The Kuebler factors
A travel application is, ultimately, of course, a parenting application, so the court has to consider the child, or the children’s, best interests under Section 60CC of the Family Law Act 1975. But there are some travel-specific considerations, which emanate from the appellate authorities in relation to travel orders. The leading authority is Kuebler and Kuebler [1978] FamCA 26. The Kuebler factors are
the duration of the proposed travel;
the bona fides of the application;
the likely effect on the child of being deprived of time with the other parent;
any threats to the child’s welfare; and
the degree of satisfaction that the court has that the parent will return the child, as promised.
Duration of travel
As general propositions, in my experience:
a shorter trip is more likely to be permitted than a longer one; and
a trip which fits neatly into school holidays is more likely to be permitted than one which sees the child missing school.
In my experience, the ratio of travel time to time the destination can also be relevant. In one matter that I was involved in, the parties lived in a regional town. The travel time to the nearest international airport was something like 4 – 6 hours, and that, coupled with needing to arrive at the airport 3 hours before departure, the actual flight time to the transit country in Asia, the time in transit, and then the flight time on to Europe, and then more drive time at the other end to get to the town where the extended family lived, meant that the travel time door-to-door was something like 48 hours each way.
In that case, the father didn’t oppose the mother taking the children overseas. The fight was over the duration of the trip. The mother was meant to have the second half of the term holidays, which was the usual 7 – 10 days, depending on how long the school holidays are. The father said “it’s fine for the mother to travel, as long as she leaves and comes back during her scheduled time with the children.”
The court took into account that, if that were to have occurred, the children would have spent 48 hours there and 48 hours back, so about 4 days’ travel time, to only have 3 or 4 days in Europe to spend with the extended family.
The court considered that that would not have been in the children’s best interests, and therefore permitted the longer travel time.
Bona fides
The court wants to be satisfied that there’s a legitimate purpose for the trip – that it’s not being done for the ulterior purpose of just keeping the children away from the other parent.
It’s not a reasonableness test, and there’s subsequent authority on that. There’s no requirement that the trip be worthwhile in a utilitarian or economic sense.
There just needs to be a legitimate purpose, and the court needs to be persuaded that that is why your client wants to travel with the children.
Effects on the child of deprivation of time with the other parent
This factor will really turn on the specific circumstances of that family.
For example, if there’s an extant order for the children to have half of the long summer holidays with each parent in a block, and the applicant wants to travel within their 3-week block of the summer holidays, there’s obviously not going to be a deprivation of time with the other parent, because the children wouldn’t have spent time with that other parent then anyway.
But if the travel time overlaps with the other parent’s time, then this might be a more relevant factor. In my view, it’s a good idea, if it’s that sort of an application, to also, with the travel application, seek orders for make-up time with the other parent. Be proactive about it, offer that make-up time, and seek an order for it. That might make the court more likely to permit the travel, knowing that there’ll be make-up time there.
Threats to the welfare of the child
There might be some specific threats relevant to the case. For example, if there’s some allegation that some extended family member has abused or molested a child, that might be a specific factor that the other side raises, and that the court considers.
I haven’t come across a case like that.
The ones I’ve come across, where there’s been a threat, have been where there’s a DFAT advisory that says do not travel or reconsider your need to travel, because it’s a war zone, or because of terrorist activity, or that sort of thing. In those cases, it’s really important for your client to put on evidence as to how they’re proposing to manage, and mitigate, that risk. I have had orders made permitting a client to travel with a child to a reconsider travel destination, because the client had really made plans, with their extended family, of travelling away from the particular terror hotspots, and ensuring that they had escape plans. They had places they could drive to, to get further away, and that sort of thing.
Degree of satisfaction that the travelling parent will return the child – the Line factors
The court will often require some form of security from the travelling parent. Typically, that’s in the form of a bond, often paid into the other party’s lawyers’ trust account. It can also be some sort of encumbrance on title to a real property owned by the travelling parent, and that’s often done by way of lodging a caveat.
to provide sufficient incentive for the travelling parent to return; and
to effectively give the left-behind parent effectively a fighting fund to litigate for the return of the child, if the travelling parent doesn’t return as ordered.
In Line, the Full Court set out a number of considerations to take into account in relation to this Kuebler factor:
the ties which the travelling parent has to Australia, which include things like an interest in real property, interest in a business, and familial and personal ties;
any motive the travelling parent may have not to return the child to Australia, including conflict between the parties, particularly if that’s conflict in relation to the child or the children;
the ties which the travelling parent has to the destination country, including, again, things like an interest in real property, interest in a business, and familial, and personal ties;
whether the destination country is a signatory to the Hague Convention on International Child Abduction that’s recognised by Australia – of course, in relation to that, you can just look at the Attorney-General’s website on the Hague Convention, which has an up-to-date list of signatories recognised by Australia; and
the financial circumstances of the parties – for example, if the travelling parent is worth $50 million, a $10,000 bond is unlikely to incentivise them to return.
Don’t forget to adduce evidence
If your client is not seeking a specific travel order for a specific trip, but is just seeking a general travel order in a final orders application, don’t forget to address the travel proposal in the trial affidavit.
Remember, counsel is not permitted to make submissions without a basis in evidence. In any event, if there’s no evidence, the judge will just say, “I’ve got no evidence. I can’t determine this issue.”
Even if there’s no specific travel proposal, the client will, presumably, have some reason for seeking the travel order, whether it’s that they have family overseas, or they just want to be able to go on holidays. Whatever the reason, make sure it’s there.
Can the court make a general order without a specific proposal?
There are some authorities that question whether the court can make a general travel order on a final basis in the absence of a specific proposal. For example, Judge Glass, in Jefferson and Hooper(No 2) [2025] FedCFamC2F 1170, said that, in the absence of a specific travel proposal, his Honour couldn’t consider the Kuebler factors and the Line factors, and therefore couldn’t determine the travel application.
Other judges have taken the opposite view. Harper J, in Alard & Dinesh [2024] FedCFamC1F 260, considered a general application, and considered that, in the circumstances of that case, there could be no confidence that the parents could agree on any future travel arrangements. Harper J therefore considered that it was in the child’s best interests to make the travel order, because it was the course that was least likely to lead to further litigation about the child.
That hearing pre-dated May 2024, so it was the old Section 60CC which applied, and Harper J specifically referred to Section 60CC(3)(l), which was a provision for making a decision which is least likely to lead to further litigation.
That provision does not have an equivalent in the current version of Section 60CC. In Ballard & Kellam (No 2) [2026] FedCFamC1F 115, Christie J nevertheless applied the same concept, citing Alard & Dinesh, and reached the same conclusion that it was in the children’s best interest in that case, to have final orders which were least likely to lead to further litigation.
Of course, there’s still the catch-all provision, now under Section 60CC(2)(f), that says the court can take into account anything it considers relevant to the child’s best interests. Therefore, the course least likely to lead to further litigation is still an argument that’s open to you and to your client in seeking a general travel order.
Passport considerations
Having a travel order is all well and good, but a travel order does no good if the child doesn’t have a passport. Without a passport, they won’t be able to leave Australia, and they won’t be able to enter the other country.
It’s important, in my view, to couple a travel application with an application for certain passport-related orders. The typical sort of orders to consider are:
an order compelling the other parent to sign the passport application; and
frameworks for:
where the passports are to be held; and
when they get passed between the parents, including in time to obtain visas and that sort of thing.
For Australian passports, the usual requirement is that any person with parental responsibility has to sign the application.
It is also possible to seek an order that your client be unilaterally permitted to apply for a passport. Of course, you need to have evidence that supports that. The typical things where I’ve seen clients achieve that sort of an order from the court, are where:
the other parent either hasn’t engaged in the proceedings at all, and therefore there’s no confidence that they’ll sign anything; and/or
the other parent has persistently breached court orders.
Again, think about those things, put on the relevant evidence.
Is sole decision-making responsibility enough for a unilateral application?
You may also have a case where your client already has an order for sole decision-making responsibility or, if it’s a pre-May 2024 order, sole parental responsibility. Technically, that is sufficient for them to apply unilaterally for a passport in the absence of another order, because their signature alone will meet the requirement that all persons with parental responsibility sign the application.
I’m told by many instructors and clients, though, that the passports office doesn’t always fully understand, or isn’t fully aware, of what a sole parental decision-making responsibility order means.
Therefore, it is prudent to seek a specific order which expressly authorises the client to solely apply for the passport, with reference to Section 11(1)(b) of the Australian Passports Act 2005.
In this episode, discuss how the Family Law Act 1975 impacts on parents wishing to travel overseas with their children, some considerations to take account of when drafting travel-related orders, and also some things to avoid when drafting those orders.
Sections 65Y to 65ZAA
You are probably aware that Part VII of the Family Law Act relates to children. It’s Division 6 of Part VII, which relates to parenting orders other than child maintenance orders, and Subdivision E of that Division deals with restraints on taking, or sending, children outside of Australia. It’s really important for both parties and lawyers to be really across the provisions of sections 65Y through to section 65ZAA, because breaches of those sections are an offence, and the penalty is imprisonment for 3 years. So they’re quite important.
In essence, what those sections provide is that if a child is subject to an extant parenting order, or an application for a parenting order has been made in relation to a child, it’s an offence to take, or send, the child outside of Australia, unless it’s permitted by a court order, or there is authenticated written consent of the other parties – either the other parties to the parenting order, or the other parties to the application.
There are corresponding provisions which make it an offence to retain a child outside of Australia for longer than permitted by the order or the written consent, but they have an exception where the person retains the child because it’s reasonably necessary to do so in order to prevent family violence.
In my experience, it’s incredibly common for both parties and lawyers to overlook the requirement that the written consent to be authenticated. Authentication for this purpose is prescribed in regulation 51 of the Family Law Regulations 2024, which, in turn, refers to the legislation at Commonwealth level related to statutory declarations. In essence, what is required is that someone who’s authorised to take a statutory declaration endorses the written consent with two things:
that they have taken reasonable steps to verify the identity of the person signing the consent; and
that they’ve witnessed the signature.
I don’t think, in 15 years of practice, that I have ever actually seen an authenticated written consent prepared for travel. I’m also not aware of anybody who’s travelled based on a written consent, which wasn’t properly authenticated, being prosecuted. Nevertheless, it’s an important thing for lawyers to be aware of, because, of course, we have obligations:
not to aid anyone in committing an offence, and even a technical breach of those provisions is an offence; and
to give correct advice.
So it’s really important that lawyers are across this stuff.
Drafting Travel Orders
It’s important to draft travel-related orders clearly and precisely, both when drafting applications and when drafting consent orders.
It’s especially important for final orders. If final orders are in place, and a parent wants to travel with a child beyond what those final orders provide for, they’ll need, again, authenticated written consent or a further order of the court.
A further order will require a new application, and will be subject to s 65DAAA requirements. That applies even if they just want to travel for, say, one day longer than what the orders provide for. So it’s really important to get this stuff right.
Time Periods
In terms of travel periods, if it’s an order for specific travel, for one particular trip – for example, you’re drafting an Application in a Proceeding to allow travel on an interlocutory basis – be sure to be really precise with the start and end times, because the travel will have to fall within those periods. Make sure you get really clear instructions on when the travel needs to occur, including transit times, travel time to the airport, and so forth.
When you’re drafting more general orders that permit travel during particular classes of times, again, make sure you actually get instructions to ensure that what you’re drafting is sensible for the case.
Typically, the sort of orders that get drafted are:
permitting that either parent can travel with a child during their regular time during school holidays, as provided for elsewhere in the orders; or
that either parent can travel with a child during any time when they’ve got the child in their care.
Conditions
It’s common to include conditions on the travel.
The most common one is a notice requirement. For example, the orders might say that, no later than 30 days before the proposed start of the travel, the travelling parent has to provide the other parent with certain information like:
itineraries;
flight details;
contact details; and
proof of travel insurance.
You might also have restrictions on where the travel can occur.
The common ones which I usually discuss with clients, and often include in orders, are:
restrictions based on DFAT advice – if DFAT’s advice for a particular location is do not travel or reconsider your need to travel, that might be excluded; and
restricting travel to non-Hague countries.
With a non-Hague restriction, you need to be really, really careful, because a lot of the destinations that Australians regularly like to travel to, aren’t signatories to the Hague Convention.
For example, Indonesia is not a signatory. If you prohibit non-Hague countries, then that family can’t travel to Bali, unless there’s some other provision in the orders or there’s consent.
I also like to include another order after the main travel order, to the effect that, except as provided for in the travel order, the parties are restrained from taking the child or the children outside of Australia, except with prior written consent of the other party. And there’s two reasons I like to include that order:
The first one is technically redundant, and that’s just to make it clear to the parties that, other than that, they need consent of the other parent. That’s the position under the Act anyway (see above), but it makes it a bit clearer for the clients.
The exception in this order is where there’s prior written consent, which notably gets rid of that requirement for the consent to be authenticated. The reason I like that, particularly for final orders, is that it avoids the parties then having to go back to their lawyers, or to find a JP, to provide that written consent to ensure they’re not technically committing an offence, particularly if it’s for something small.
Say, for example, the orders provide for travel during school holidays only, but the parties agree that the child can miss the first two days of the next term. That can then be just agreed in a WhatsApp message, or an email, or however the parties choose to communicate in writing, without having to see the lawyers or find a JP.
It could also be for when a party hasn’t complied with a notice period. For example, if the requirement is that they have to give 30 days’ notice for the itinerary, but they’re travelling because there’s been a death in the family and they need to go to the funeral urgently.
Things to Avoid
I’ve got a real bugbear with a really common type of travel order that I see: an order that basically sets out all the stuff that I’ve suggested setting out, but still makes it subject to agreement by the other party.
That doesn’t actually permit anything. It just summarises the stuff that they should be talking about to inform whether or not they’ll agree. It leaves the parties no better off than just having no travel orders at all, and just leaving it to section 65Y through to 65ZAA.
In my view, drafting those sorts of orders is both a waste of your time as a lawyer, and a waste of your client’s money in paying you to draft it.
The other thing that you need to be careful to avoid is just slavishly following a precedent. Orders need to make sense for the particular family, and in the context of the overall orders that are being drafted.
A recent example I dealt with was a matter where orders were drafted on a final basis at a court hearing. Everybody was at court. There was a bit of time pressure because they were there for an interim hearing or a mention or something, and decided to draft final consent orders there and then.
As best I could ascertain, those orders were drafted by the independent children’s lawyer, using that independent children’s lawyer’s usual precedents. Those orders included a travel provision, very much in the way that I’ve recommended drafting it. It had the notice requirements, it had the restrictions, and all that sort of stuff in it.
And it said that the parties could travel at any time when the child is scheduled to regularly spend time with the party under the parenting orders.
What that provision failed to take account of was that the only regular time specified in those orders for the child to spend with the father was two nights on three out of every four weekends. The context there was the parties lived several hours apart. Somewhat unusually, those orders did not include any specific time during school holidays. The three out of four weekends just rolled all the way through the year.
The effect of that was that whilst there was, to the understanding of at least the father, an order that permitted him to travel – and he thought it meant he could travel quite liberally during the holidays – what the orders actually did was permit him to travel overseas for two nights on three weekends out of every four.
Of course, given the distance from Australia (in this case, Victoria) to pretty much anywhere except New Zealand (or perhaps for people who live further north, parts of Indonesia, PNG, and other places around there), Australians can’t really do international travel in two nights. It’s not like we live on the border of Germany and France, and can just hop across the border and back for a weekend.
So those orders were really quite useless.
In that particular case, the father wanted to travel overseas to see family. Both the parents, and the child, were born overseas, but he couldn’t do it. The mother wouldn’t agree. He had to make an application to the court, and it was listed for a s 65DAAA threshold hearing.
You need to be really, really careful with how you draft these orders and don’t look at the orders in isolation for travel. Look at them in the context of the overall case and the overall orders.
