Parenting Arrangements and Bona Fide Overseas Travel

Overseas travel is a reasonably common occurrence in Australian life today. That travel can be either for business or pleasure, sometimes it is for both. Matrimonial or relationship disharmony need not be a complete impediment to such travel including the children of separated or divorced parents.

Application by a Parent To Take a Child Out of Australia Temporarily
In Fink & Abernathy [2011] FMCAfam 1467 (16 December 2011), amongst other issues, Scarlett FM dealt with an application by a parent to take a child out of Australia temporarily.  After having recourse to Kuebler & Kuelber [1978] FLC 90-434; [1978] Fam LN 4; Line & Line [1997] FLC 92-729; and Sefu & Gyasi [2010] FMCAfam 1004 the Court found the following to be relevant considerations in such an application:

• The degree of risk that the child will not be returned to Australia; and
• Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

In Bray & Constable [2011] FMCAfam 1397 (16 December 2011) Kelly FM found the Court should also consider whether:

• The proposed destination may expose the child to any risk or threat of harm; and
• The travelling parent has satisfied the Court regarding their bona fides.

Degree of Risk
Scarlett FM found further that the degree of risk that the departing parent may choose not to return to Australia is considered in light of the following:

• The existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate; the existence of business interests, or the residence of close family and friends here);
• The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues); and
• The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate; the existence of business interests; or the residence of close family and / or personal friends there)

Cash Security
Insofar as providing a cash security in such an application is concerned, Scarlett FM found the purpose for so doing is to provide a sum:

• Which will realistically entice the person removing the children to return; and
• To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

PACE Alert / Airport Watch List
Touching briefly of the issue of PACE Alerts, in addition to the foregoing, relevant considerations in any application for a PACE Alert or for the names of the children to be placed on the Airport Watch List are whether:

• The restrictions as sought by the applicant are unnecessary and unduly restrictive.
• To do as the applicant proposes will doom the parties to further litigation in the future; and
• That further litigation will not in the best interest of the Child.

Conclusion
Like the best travel experiences good preparation can improve the outcome immensely. Properly addressing the issues raised above in your application material will provide the Court with the opportunity to fully consider whether the requested temporary overseas travel with the children of the relationship is appropriate.

Footnote
This article has been published by CCH Australia in its Tracker Series.

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 “International Child Abduction, Overseas Travel and Parenting Arrangements”