Often, after a separation, couples who once regularly agreed and went on overseas holidays together with their children are suddenly embroiled in disputes about whether their children should go overseas on holiday or not.
Unfortunately, when trust detiorates totally, each parent usually has a view that the other parent has sinister motives in trying to take the children overseas for a holiday.
A parent does have a right to seek an injunction for a child not to be removed from a country for a purpose of a holiday overseas with the other parent.
In a lot of these cases, common sense prevails and through negotiations and Mediations a resolution is reached.
In those cases where the matter does proceed to Court, the Court always looks at a number of factors in deciding whether the child should be allowed to go on an overseas holiday with the parent. The overriding consideration in the best interests of the child. Specifically, some of the following factors will have impact, depending on the circumstances of each case:-
- The age of the children;
- The time that has lapsed since separation and the current arrangements that are in place for the children to see each parent;
- Whether there has been a history of travel (when the family was together) to the overseas country;
- Whether there has been travel to the overseas country since separation;
- Whether the proposed overseas country is a signatory to the Hague Convention concerning the international abduction of children (if so, then that provides the Court with some comfort that if the children are not returned, there is a means to secure the Children’s return to Australia);
- If the country is not a signatory to the Hague Convention, then what Justice system exists in that country with respect to children;
- Are there strong cultural issues as to why the children should go on holiday with a parent, for example, visiting Grandparents and staying in contact with important cultural aspects of their upbringing);
- Proposed length of holiday;
- Financial position of both parties.
There are many other factors that can be relevant.
In just about all of the cases when the child is allowed to go with a parent on an overseas holiday, the Court will usually order that the parent place a sum of money in Trust as a security in case they breach the Orders and do not return. This is usually provided by way of an incentive for that parent to return with the children. Also, purchasing and providing the other party with copies of the return flights for the children, together with a detailed itinerary and contact numbers is also usually provided.
If you are contemplating travel overseas after separation with the children for a holiday, then you should raise the issue with your ex-spouse or partner at an early stage. Attempt to mediate the dispute if a resolution cannot be reached and if you have to seek legal advice, then do so at an early stage, well before the contemplated holiday.