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Overview

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:

  1. that they have taken reasonable steps to verify the identity of the person signing the consent; and
  2. 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:

  1. not to aid anyone in committing an offence, and even a technical breach of those provisions is an offence; and
  2. 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.