Can I Take My Kids Overseas After Separation? What You Need to Know

Can I Take My Kids Overseas After Separation?

Planning a family holiday overseas with your children after separation? It might seem like a personal decision but if you're separated or divorced, international travel can quickly become a legal issue.

Even if you have primary care of the children, it is important that you consider the legal implications before you book an overseas trip for your children.

What Does the Law Say?

In Australia, there are specific laws around overseas travel for children. 

Under section 65Y and section 65Z of the Family Law Act 1975 (Cth) (Act), it is illegal to take a child from Australia if a parenting order is in force, and/or if there is a parenting order application pending before the court, unless:

• You have the authenticated written consent of every person the parenting order applies to, or

• You have a court order that permits the travel.

An exception exists if the person believes the conduct is necessary to prevent family violence, and the conduct is reasonable in the circumstances as perceived by the person.

To be valid, “authenticated written consent” must meet specific legal requirements: it must be in writing, signed by the consenting parent, and witnessed by an authorised person who can take statutory declarations. A verbal agreement alone is not sufficient and does not satisfy the legal standard.

This applies even if the travel is temporary or the parent has primary care of the child.

If there is a parenting order in place that doesn’t allow for the overseas travel, or if you’re currently involved in parenting proceedings and the other parent hasn’t given their consent for the overseas holiday, you must apply to the court for permission before taking the children overseas.

What Does the Court Consider?

The Court will assess whether the trip is in the best interests of the child.

The following considerations are usually taken into account:

• The reason for travel (e.g. holiday, family visit, cultural or religious event)

• Travel dates and return plans

• Risk that the parent might not return with the child

• The impact of the overseas travel on the child’s relationship with the other parent

• Whether the travel aligns with existing parenting orders, or interferes with the other parent’s time with the time

What If I’m Worried About the Other Parent Taking the Kids Overseas?

If you’re concerned that your ex might take the children overseas without your permission (especially if there’s a risk they won’t return), you can:

• Apply for an order preventing overseas travel

• Request that the children’s names be placed on the Airport Watch List

Need Help With Travel Issues?

At Moran Family Law, we help parents navigate the legal side of international travel, passports, and relocation after separation with a child-focused approach that aims to keep things cooperative wherever possible.

Disclaimer: This article is for general information only and does not constitute legal advice. Every family situation is different. If you need advice about your specific circumstances, you should speak to a family lawyer. You can contact Moran Family Law for advice tailored to your situation.