LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

Family Law - Ex Refuses Four Weeks Travel Overseas - What to Do?

Discussion in 'Family Law Forum' started by Silentnight, 27 October 2015.

  1. Silentnight

    Silentnight Member

    Joined:
    15 September 2015
    Messages:
    4
    Likes Received:
    0
    My ex will not give me permission to travel to Europe for 4 weeks next May. He says I can take our children for 12 days but not for the length of time I am proposing... My children have valid passports. We travelled a year ago to the same place for 4 weeks (he agreed). I lived there with the children for eight months, three years ago. I have always returned - there is no flight risk... If I didn't have to come back, I wouldn't have bothered three years ago!

    My family is in Europe, plus I take the children to see his family when we are there.... My mother has cancer and can't fly, my son's grave is there, my family is there.... We have no family court orders in place and the children live with me primarily.

    What are my options under Family Law? Do I need to go to family court to get an order to travel? Essentially, he has given permission to travel overseas but only for 12 days not for the four weeks I am asking for...
     
  2. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,065
    Likes Received:
    126
    You can initiate mediation or try to compromise with him. Has he given any reason for refusing the 4 weeks? Does it impact on his time with the kids? Would he agree for 4 weeks but at a different time?

    Look if you don't get an agreement then you could apply to court. The costs could blow out to thousands of dollars. So doing whatever you can to get an agreement with him is going to be your best bet.
     
  3. Silentnight

    Silentnight Member

    Joined:
    15 September 2015
    Messages:
    4
    Likes Received:
    0
    When we last went, one of the children refuse to engage in a telephone convo with him (he could hear him saying no in the background). The other child did speak to him. The eldest is funny about phone conversations at any time and due to time difference, was still grumpy from being woken up... We had agreed Skype/phone convos at the father's normal times of seeing them and he did Skype with the child who refused to speak on phone a couple of days later....

    The other reason he states is he would miss too much school (it would be 10 days as backing onto school holiday). The father would miss 6 hours of his time with children as he has already asked to swap a weekend earlier in the year which I have said I could effectively swap back while I'm away so he effectively does not lose any time....

    When I go is not the problem. It seems to him it's the length of time I want to go for..... However, I cannot justify spending at least $20000 on a trip for only 12 days (7 of us going!) plus wit travel time/recovery it would not be worth it....

    If I stated the dates I'm going, would it be up to him to take me to court to stop me going? Or should I apply to get the court's permission?

    It's just an on-going control aspect for him.
     
  4. JS79

    JS79 Well-Known Member

    Joined:
    2 October 2015
    Messages:
    307
    Likes Received:
    35
    Hi,
    I have found an article that can help you in knowing your rights regarding overseas travel:
    Overseas Travel with Children After Separation or Divorce - Legal Blog - LawAnswers.com.au

    The first step for you would be to go to a mediation service like Relationships Australia and commence mediation with your ex. He might see that he is being unreasonable. If he refuses to attend, or if he attends but an agreement cannot be made - then you will probably will need to go see a family lawyer to enable you to travel. See https://lawanswers.wufoo.com/forms/get-connected-with-the-right-lawyer-for-you/
    to be connected with a local family lawyer.
     
  5. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    1,065
    Likes Received:
    126
    So here is the legislation.
    http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65y.html

    He kinda has a point with school. My kids' school principal has spoken to me because my kids miss in a total of 12 days of school a year to visit their mum... Even after telling the principal we have consent orders that stipulate the times and I'd be in breach of the orders the principal still told me it was a problem....

    But to answer your question - the law states that you need written consent of the other parent. So nope it would be you who has to apply to court.

    But what if you went anyways..... Well you would be breaching court orders and according to the legislation you could be locked up for 3 yrs... The ex would have to make the court application for the contravention and if he did that then you would have to provide the magistrate with mitigating circumstances, etc. and the magistrate will make a decision. Now if there is no significant history of you breaching the orders then one might think the magistrate would go easy, especially if the time missed with the dad was insignificant. But you're playing with fire...

    So in my case, the ex agreed to 7 days in Fiji. All good, signed passports, etc, etc... Then she changed her mind.... Oh dear. At the time she was the primary carer, so I could not just take the kids and go... Flights booked, accommodation paid for, etc, etc. But she had changed her mind... She would reconsider but only if I agreed for her to move 9 hours away with the kids...

    So one week in Fiji and in return for only seeing my kids in holidays and not 5 nights a fortnight. Doesn't sound like much of a deal does it? Fortunately (kinda) we were still fighting over asset division etc. So I wrote to her solicitor and advised that I'd be making a court application and suggested it would save us both money if she'd just agree... Obviously, wasting money in court over this didn't seem like much fun to her so she just agreed....

    So you can tell him that you want him to agree, please and you'd be more than willing to provide extra time in return, in short grovel. If you want to go overseas for a particular event, it had better be more than a year away because I have no idea how long it would take to get to see a magistrate and get a decision.
     

Share This Page

Loading...