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Removal of a child from Australia during Court proceedings

When parents are involved in Court proceedings regarding parenting matters, circumstances may arise in which a party wishes to travel overseas before the conclusion of the proceedings, such as for a family event or a holiday. This can occur at a time when there is little trust or willingness to cooperate between the parties. The Family Law Act states that it is an offence to remove a child from Australia who is the subject of family law parenting proceedings, unless you have the consent of the other parent or a Court Order.

If both parents consent to the travel and assuming the child has not been placed on the Airport Watch List, then a travelling parent is free to travel internationally with the child. It is usual in such circumstances, for the travelling parent to provide the non-travelling parent with a copy of the child's return air ticket and contact details for the child while the child is abroad. Parents will also usually negotiate some makeup time for the child to spend with the non-travelling parent.

If the consent of the non-travelling parent cannot be obtained, then the parent wanting to travel will need to make application to the Court, seeking an order that they be permitted to travel internationally with the child. There are a number of factors which the Court will take into account when determining whether to grant an order allowing a parent to travel including:

1. The circumstances in the country which is the destination of the travel, including whether such country is a signatory to the Hague Convention.

2. The length of time for the proposed travel and its effects on the child's time with the non-travelling parent.

3. Any threat to the child's welfare in the proposed country which is the destination of the travel.

4. The reason for the travel.

5. The risk that a parent will not return with the child to Australia.

6. The best interests of the child.

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