School holidays in Bali… But do you have consent?

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 22/09/2017, Last Updated on 20/03/2019

So you have just been served with an Application for Parenting Orders by the children’s father. Since separation over three years ago, the children have lived exclusively with you, and Dad has been largely absent from their lives.

For the past three years, Dad has lived in Sydney, and apart from his child support and making the odd skype call, you are effectively parenting the kids single-handedly.

Dad returned to live in Perth two months ago and now wants to spend five days every fortnight with the children. Not surprisingly, perhaps, you object, and no agreement is reached at mediation. The father then files an Application for Parenting Orders, including an Order for Equal Shared Parental Responsibility and to spend substantial time with the children. The hearing is set for a date seven weeks hence.

Like thousands of Western Australian parents, you’ve routinely taken the children to Bali for the school holidays. Feeling somewhat down in the dumps at the pending Court hearing, you decide to do what you’ve done for the past three years and take the children to Nusa Dua. Given that your communication with your ex is all but non-existent, you don’t bother telling him. He’s aware the children have been to Bali with you for the three previous July school holidays, so you think it’s no big deal. You and the children spend a lovely ten days in Bali in the midst of a Perth winter.

Blissfully unaware that you have just breached Section 65Z of the Family Law Act, which carries a penalty of up to three years imprisonment!

Many parents are completely unaware that once an Application for Parenting Orders has been filed and served then “a person who is a party to the proceedings…must not take or send the child concerned from Australia to a place outside Australia, except if:

  1. it is done with the consent in writing of each other party to the proceedings;
  2. it is done in accordance with an Order by the Court.”

Accordingly, even if the children have lived with you exclusively since separation and the other party has had virtually no communication with them (or you) during that time, their written consent must still be obtained if a breach of the Act is to be avoided.

Section 65Y of the Act makes similar provisions, once parenting orders have actually been made.

In the notable decision in Sullivan v Tyler and Anor, (2016) orders were made prohibiting a mother from taking her child overseas. Despite these orders, the mother did exactly that. Consequently, upon the father’s Application, the Court made orders  – whilst the mother and child were overseas – providing that the child live with the father, that the mother’s name be posted on the Federal Police Airport Watch-List and that a warrant immediately issue for her arrest by reason of an offence committed under Section 65Y of the Family Law Act.

The mother was subsequently arrested abroad and detained in jail whilst the child was placed in the care of that country’s child protection authorities. Under The Hague Convention dealing with international child abduction, the child was then returned to Australia to be reunited and to live with the father. Following extradition to Australia, the mother was then charged with an offence under Section 65Y of the Family Law Act.

Although the mother’s sentence was comparatively light given the nature of her actions – a good behaviour bond – the case highlights the often overlooked and perhaps little-known sections 65Y and 65Z of the Act requiring the written consent other the other party to any international travel either once proceedings have started, or after any orders have issued.

Therefore, if you are involved in parenting proceedings at Court you must always ensure there is written evidence of the other party’s consent – regardless of how good, bad or indifferent your relationship with that party happens to be.

For further advice regarding this or any other parenting issue call DS Family Law on 08 9486 1766 or visit www.dsfamilylaw.com.au.

The above information is general in nature, and is not specific advice for your situation. If you have questions about how the information contained this article may apply to your situation, you must seek independent legal advice.

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