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The Federal Government has announced implementing a level-four travel ban for the entire world, advising all Australians to not travel overseas at this time. It has also recommended that Australians already overseas who wish to return to do so as soon as possible. This follows the announcement on 15 March 2020, that all travellers to Australia will be required to self-isolate for 14 days on their arrival to the country. Other countries have and continue to impose similar travel restrictions for persons entering their borders.

These travel restrictions are likely to impact many separated Australian families who are currently travelling internationally with children or who have upcoming plans to travel internationally with their children pursuant to Orders of the Family Court of Australia or Federal Circuit Court of Australia (parenting orders) or an agreement reached between them. 

This alert, authored by Partner, Lisa Lahey, seeks to provide timely information to consider for persons travelling internationally with children during the COVID-19 pandemic. 

If you or your ex-partner are currently travelling or intend to travel internationally with children in the near future, you may wish to consider the following:

1. Is each parent clear about the scope of the travel in the parenting order or previous agreement? 
2. Is the travelling parent aware of the current travel restrictions with respect to the countries they and the children are travelling to and from? 
3. Is there a quarantine period imposed in the destination country? Has that been communicated to the non-travelling parent?
4. What information has the travelling parent shared with the non-travelling parent. For example, do both parents have a copy of relevant travel documents, including but not limited to, children’s travel insurance, passports, visas and itinerary of intended travel in case of emergency? 
5. Is the travelling parent aware of the children’s vaccination and medical history in case the children become unwell during the travel period and medical assistance is required? Does the travelling parent have enough medication or prescriptions for the children if the travel period is extended due to quarantine? 
6. Where are the children going to live when they return to Australia during their 14-day quarantine period? Is this practical? Fines and other penalties may apply for persons who do not self-isolate.
7. If upcoming travel is postponed and not able to proceed, what mechanism is in place for the travelling parent to travel with the children at an alternate time in the future or was the agreement a one-off opportunity? 

The law 

The Family Law Act 1975 (Cth) imposes obligations on persons travelling internationally with children pursuant to parenting orders. Failure to comply with the provisions may be an offence. Importantly: 

1. Under section 65Y and 65Z, it is an offence if, a parenting order is in force or there are pending parenting proceedings and a person takes a child outside of Australia without either specific written consent, or a specific order made by the Court. The person committing the offence may be a parent or a person acting on behalf of a parent. 
2. Under section 65YA, it is also an offence if, a child is taken outside of Australia, this time with the consent in writing of each parent or in accordance with an order of the Court, but the child is retained outside of Australia, otherwise than in accordance with a consent order or with the written consent of each parent. 
3. The penalty can be imprisonment. The offending party bears the evidential burden of proof in relation to the offence and must demonstrate the conduct of sending the child to or from Australia or retaining the child outside of Australia without consent in writing or a Court order, was necessary to avoid family violence or was reasonable in the circumstances. 

A person is taken to have contravened an order if they intentionally failed to comply with an order or made no reasonable attempt to comply with an order. A person can also contravene an order by preventing compliance or aiding the non-compliance of another person. The non-complying person must demonstrate to the Court that they had a reasonable excuse for contravening the Order. Each case will be determined on its facts, however, a Court may be satisfied there was a reasonable excuse if the person did not understand the obligations the order imposed on them or the contravention was necessary to protect the health or safety of either the person or a child. In the case of COVID-19, the Court may take a common sense approach to applications made for contravention at this time, and find there was a reasonable excuse where the contravention arose directly out of travel restrictions imposed by Australia, or other countries, and compliance with the orders (by way of return dates to Australia) was not possible.

At present however, the Courts are unlikely to have the resources to hear and determine urgent applications with respect to international travel arising out of the COVID-19 pandemic. This means, where possible, parents need to be proactive in resolving disputes between them. 

To ensure certainty for both parents, it is essential to ensure that agreements in relation to international travel with children are made in writing. The legislation prescribes a specific form for consent, where it is outside the terms of an order. This is critical when travel plans change, and the travel becomes outside of the original scope as provided for in the agreement or parenting order. 

If you are uncertain about the impact of current or upcoming international travel on your parenting agreement or Orders, we advise you to seek legal advice as soon as possible, which our Family and Relationship Law team can assist with.