A common dispute amongst separated parents is the question of overseas travel with the children.

This can be a particularly serious and contentious issue in circumstances where the proposed travel is not consented to by the non-travelling parent and there is a genuine fear that:

• The travelling parent may not return to the country with the child/ren; or
• The proposed travel plans are dangerous or not in the child/ren’s best interests.

Where one parent proposes to travel overseas with the children, and the other parent does not consent for one of the above reasons, then unless the parties can reach some agreement between them, an option for the non-consenting parent where there is a genuine fear that the other parent may abscond with the children overseas, is for that parent to obtain a Watch List Order (or what are commonly referred to as Airport Watchlist Orders).

What is a Watch List Order?

A Watch List Order places the names of the children on a Watch List that operates at places of departure from Australia by air (airport) and sea, and effectively prevents the children being taken out of the country.

How do you obtain a Watch List Order?

An application must be filed with the Federal Circuit Court of Australia or Family Court of Australia, along with a supporting affidavit.

Before filing such an application, the applicant must be satisfied that there is a real concern that the other parent may not return to Australia with the child/ren, or have a genuine reason for not consenting to the child/ren travelling with the other parent.

Matters considered by the Court

The affidavit in support must include evidence to establish the requisite grounds in order to enable the Court to determine the application including but not limited to:

• The basis for the applicant’s belief that the children may be removed from Australia
• Details of the immediacy of the risk
• Whether the parent proposing to travel with the children has strong family and/or employment ties in the destination country
• Details of the travelling parent’s ties or connections with Australia, for example, if the travelling parent has no employment or family in Australia, this may be a relevant consideration
• The risk of the child/ren not being returned
• The relationship between the child/ren and each parent
• Details of the child/ren’s age, health and schooling arrangements
• Details of the proposed destination, especially where the destination is particularly dangerous or for demonstrated reasons, not in a child’s best interests

The applicant may send a copy of the filed application and affidavit to the Australian Federal Police and request that the child’s name be placed on the Watch List immediately, pending final Orders.

Applications may be heard by the Court on an urgent basis if there is an imminent threat or risk of travel.

If the applicant parent obtains the Watch List Order, a copy must be provided to the Australian Federal Police immediately.

Unreasonable Applications

Applicants should give careful consideration before filing an application in circumstances where it may be considered unreasonable to withhold consent to travel, or where there is no evidence that the travelling parent poses a “flight risk”.

However, each case is decided on its own merits and based on the circumstances of the particular case, thus it is strongly recommended that an applicant seeks legal advice.

Should you have any enquiries in relation to Watch List Orders, please contact Edwards Family Lawyers. For information in relation to parenting matters generally please see our “Parenting and Children” page.

TERESA DODARO
Senior Associate
Edwards Family Lawyers

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