Holidays and trips overseas are great experiences, especially for children, however, as your family lawyers will advise you, if you are a divorced parent, packing your cases and flying off to some far off land with your children, can be a complicated matter, if not done correctly.

When we say ‘done correctly’ we are not talking about choosing the correct resort or airline, but instead, doing it correctly with reference to family law in Australia.

You see, whilst taking one’s children overseas for a holiday or to visit family, for example, is undoubtedly a positive, there needs to be a process followed to ensure that you are doing it lawfully.

This follows from the fact that in most divorces cases where there are children, there is an assumption of equal shared parental responsibility, and most parenting orders issued by the court as part of a divorce will signify this.

What it means in practical terms with regards to children, is that no major decisions can be taken regarding their lives without the agreement of both parents. These are the decisions that relate to their education, their health, and their religious upbringing, to name but three.

There are others, and one of those is any decision to take the children out of the country, whether that is for a holiday, a family wedding, or to visit their grandparents on the other side of the world.

Let’s take a look at a positive scenario and that is where you discuss the matter with the children’s other parent, and they agree that you can indeed take the children overseas with you.

In truth, the vast majority of these types of situations happen like this. After all, if the other parent genuinely has their children’s best interests at heart, why would they object unreasonably?

However, not all end up as amicable, and there will situations where the other parent does object. There can many legitimate and perfectly understandable reasons for this, with the most common being that they believe their ex-spouse is planning to take the children overseas, and not return.

As well as voicing their objection to the children’s other parent, there are steps they can take which should prevent the children from being taken overseas without their permission. The first is to obtain a Child Alert which will prevent a passport being issued for the child or children.

There is also the option to have the children placed on the Federal Police Family Law Watch List which you may have heard being called the Airport Watch List. As this implies it means any child on the list should be spotted by border staff at airports if there is an attempt by a parent to leave the country with them.

The penalties for trying to take children overseas without permission are severe. As laid out in the Family Law Act, in Sections 65Y and 65Z, a parent doing so could end with a 3-year prison sentence.

Of course, it may not go that far, and even if your ex-spouse were to object unreasonably, you can go to court and request that you be allowed to take them overseas.

The court will consider whether the trip is in the children’s interest, the likelihood of you not returning, and also whether the country you plan to visit is a signatory to the Hague Convention which covers the safe return of children to their native country if a parent refuses to bring them back.