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Overview
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.
The Full Court in Line & Line [1996] FamCA 145 clarified that the purpose of that security is twofold:
- 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.
