Separated Families – Court order allowing children overseas

17/08/2015

David and Vanessa were in a de facto relationship for 12 years and then separated.  They had a boy and a girl aged 11 and 9.  David moved to  Germany and Vanessa remained living in Sydney with the two children.  David generally travelled to Australia twice a year and spent time with the children in Sydney and on holidays in Australia.  As the children grew older, David wanted them to spend time with him in Germany.  David asked Vanessa whether the children could spend holidays with him in Germany but Vanessa did not want the children to travel outside Australia and refused David’s request.  The eldest child had an Australian Passport which Vanessa kept.  The youngest child had never travelled overseas and had no Passport.

David sought advice from Watson & Watson.

Dennis Grant advised that the appropriate course was to attempt to resolve the matter but in the absence of being able to resolve by negotiation, to make an application to the Federal Circuit Court of Australia for Orders requiring Vanessa to:-

  • Sign the Passport Application for the youngest child.
  • To provide the Passport for the oldest child to David.
  • To make an order permitting overseas travel with appropriate notice and notifications / restrictions.

Vanessa continued to refuse and an application was made to the Federal Circuit Court of Australia seeking Orders for issue of Passport and hand over of Passport and for the ability to travel overseas with the children on two occasions each year and at such other times as the parties might agree. 

Dennis Grant prepared the appropriate Affidavit in support of the Application which set out:-

  • Details and purpose of the proposed travel and copy of itinerary. 
  • The connection to Australia of the persons travelling overseas.
  • Details of whether the country is being visited where members of the Hague Convention for return of children.
  •  Immigration status of the persons travelling.
  • That David was willing to provide an undertaking to pay any damages that Vanessa may suffer as a result of the Order requested.

Orders were made on a final basis allowing David to travel overseas with the children.

Vanessa had threatened to lodge a Child Alert Request with the Australian Passport Office or to apply to the Federal Circuit Court of Australia for a Child Alert Order.

David also made an application for Vanessa (as the childrens’ mother) to sign for issue of an Australian Passport.

David also sought advice in relation to whether or not Vanessa could then prevent the children travelling overseas.  As the Orders had been made Vanessa would need to make an application to the Court to have the Orders revoked.   This was unlikely to succeed.  No order was sought by Vanessa and David was able to travel overseas with the children. 

Please do not hesitate to telephone Richard Watson or Dennis Grant who will be happy to assist you regarding any concerns you may have in relation to any travel plans you or your partner may be intending with your children.  You should act early to allow sufficient time for negotiation, an application to be made and heard by the Court.

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