Planning a holiday for yourself and your kids can be fun and exciting – but it can also be illegal if you haven’t obtained the consent of your ex-partner.

Whether it’s a quick long weekend getaway to Bali or an entire summer in Europe, legally you cannot take your children out of the State without consent of the other parent. If there are proceedings in the Family Court, it would constitute an offence under the Family Law Act and you risk being stopped by immigration at the airport and denied permission to board flights, and in rare cases, imprisonment.

Obtaining Consent

Of course, family law disputes aren’t always simple. Your ex-partner might choose to unreasonably withhold consent, they might not be contactable, or there might be urgent circumstances that necessitate the travel. In these circumstances you can apply to the Court for permission to take your children overseas. Applying to the Court for permission to travel can take time. You should always consult a lawyer and plan ahead when making international travel plans whilst Family Court proceedings are on foot.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.

  1. The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
  2. NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
  3. Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
  4. Biology is but one fact, sometimes a very important fact – but it is not the only fact.
  5. In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
  6. The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
  7. It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
  8. Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
  9. Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.

In a landmark case regarding parenting rights, the judgment in Masson v. Parsons & Ors (S6/2019) was handed down on 19 June 2019 ruling in favour of the biological father who had donated his sperm. The High Court decision was made following the mother’s decision to move to New Zealand with their biological child.

ABC news reports that the decision overturns an appeal the girl’s mother and her wife won and reaffirms an earlier ruling ordering they remain in Australia as well as consult him on major parenting decisions.

Latest relocation statistics from the Family court of WA.

In the period from April 2015 to March 2016 there were 29 relocation cases in the Family Court of Western Australia. 23 of these cases were decided after final hearings, with 6 at the interim stage. Two of the final hearings were subject to appeals where one was dismissed and the other withdrawn.

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