Taking a Child Overseas After Separation: What You Need Before You Book

Getting it wrong is not just an argument about a holiday. Depending on your circumstances it can be a criminal offence carrying up to three years imprisonment.

The Basic Rule

If a parenting order applies to your child, you cannot take or send that child out of Australia unless you have the written consent of each person the order favours, or an order of the court allowing it. That is section 65Y of the Family Law Act 1975 (Cth), and the penalty is imprisonment for three years. Section 65Z does the same thing while proceedings for a parenting order are pending, with the same penalty. There is a narrow defence where a person believes their conduct is necessary to prevent family violence and it is reasonable in the circumstances as they perceive them.

If you were never married to the other parent, your matter is under the Family Court Act 1997 (WA), and the equivalent provisions are sections 107 and 108. The Western Australian version is stricter in two ways. It is drafted as a crime that catches reckless conduct as well as deliberate conduct, and the penalty is imprisonment for three years and a fine of $56,340, or on summary conviction, imprisonment for 18 months and a fine of $28,170.

If there are no orders and no proceedings on foot, those particular offence provisions are not engaged. That is a thinner protection than it sounds. The other parent can be in court within days seeking an injunction, and if you are already overseas you may be defending a Hague Convention application rather than enjoying a holiday.

Passports Come First, and They Are Their Own Problem

A child cannot be issued an Australian travel document unless every person with parental responsibility consents, or a court order permits the child to have a travel document, to travel internationally, or to live or spend time with a person outside Australia. That is section 11(1) of the Australian Passports Act 2005 (Cth). One parent's signature is not enough.

If the other parent will not sign, section 11(2) allows a travel document to be issued anyway in defined situations. They include where the Minister is satisfied that the child's physical or psychological welfare would be adversely affected if the child could not travel internationally, and where the child urgently needs to travel because of a family crisis and a non-consenting parent cannot be contacted within a reasonable period. These are narrow, and the Minister may also decline to exercise the discretion on the footing that a court should deal with the matter. For most parents the realistic path is a court order.

Child Alerts Do Less Than People Think

A child alert asks the Passport Office to look closely at any passport application for your child. It is useful, and it is free, and it is widely misunderstood.

The Passport Office says plainly that an alert "doesn't guarantee we'll refuse the child a passport", and that it "won't stop your child from travelling if they already have, or are entitled to, an Australian or foreign travel document". If your child already holds a passport, or holds citizenship of another country and can obtain one there, an alert will not help you. An alert lodged without a court order lasts up to twelve months. One backed by a court order can run until the child turns eighteen or marries, or as the court directs.

The Family Law Watchlist

The Watchlist is the mechanism that actually stops a child at the border. It is run by the Australian Federal Police. A child can be placed on it where a parenting order or injunction limits or prevents overseas travel, or where an application for such an order is before the court, and the Family Court of Western Australia is expressly included.

Two Practical Points That Catch People Out

• The AFP prefers orders that restrict travel for a defined period of up to three years, so an open-ended order may not be what you end up with.
• Getting a child off the list is harder than getting them on it. If an order put them there, you will usually need a further order to remove them, and if you are the parent who applied and you now want to travel with the child yourself, you need to give the AFP as much notice as possible or you may be stopped at the airport on the strength of your own order.

If You Are the One Who Wants to Travel

Ask early and ask in writing. A consent that will actually hold up sets out:

• The destination
• The dates
• The flight details
• An address overseas
• How the child will keep in contact with the other parent
• The date of return

Vagueness invites refusal.

If the other parent refuses and you want the court to allow the trip, expect questions about the destination country. Whether it is a party to the Hague Convention matters a great deal, because it determines how realistic recovery would be if the child were not returned.

If the Child Has Already Gone

Act immediately, not next week. The Hague Convention applies to children under sixteen, and only where the destination country is also a party to it. Where it does not apply, you may be looking at proceedings in the other country's courts, which is slower, more expensive and much less certain.

The Limits of a Blog Post

This is general information about the law as at September 2026. It is not advice about your situation. The offence provisions above depend on whether orders exist, whether proceedings are on foot, and which Act applies to your family, and those details change the answer completely. If overseas travel is in issue for your children, get advice before you book, not after.

Tom & Co Legal practises in family law in Perth. If you would like to discuss a parenting matter, contact the office on (08) 6255 5737 or at info@tomandcolegal.com.au.