Taking a child overseas without consent is a criminal offence under section 65Y of the Family Law Act 1975 where a parenting order is already in force, and the penalty is imprisonment for three years. Section 65Z applies the same rule where an application for parenting orders is pending. Where no orders exist, and nothing has been filed, section 65Y doesn’t apply, and the practical brake is the passport. Every child needs their own, and it won’t be issued without the consent of everyone with parental responsibility. If the passport is already in the drawer, even that brake is off, which surprises parents who assume someone at the airport will ask. So for most separated parents booking a school holiday trip, the question isn’t whether consent is optional. The question is how to get it in writing, and how early.

Key takeaways

• Section 65Y bites once a parenting order exists. Section 65Z bites once an application has been filed, which catches parents mid-dispute who assume nothing has changed yet.
• Written consent must be authenticated, meaning a person authorised to take statutory declarations has confirmed the signer’s identity and witnessed the signature, under section 51 of the Family Law Regulations 2024.
• A passport application needs the agreement of each person with parental responsibility, whether there are orders or no orders.
• Keeping a child overseas longer than the consent permitted is its own offence under section 65YA, carrying the same three-year penalty, even where the departure was lawful.
• Court permission runs on months, not weeks. A December disagreement raised in November is already behind.

Can I take my child overseas without the father’s consent?

No, and the answer doesn’t shift depending on which parent is asking. The obligation attaches to the orders and to parental responsibility, not to a mother or a father.

Where a parenting order is in force, the travel is only lawful if each party in whose favour the order was made has given authenticated written consent, or a court order permits it. There is one statutory exception. The offence provisions don’t apply where the person believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as they perceive them.

No orders, nothing filed, and the criminal provisions sit dormant. That isn’t permission. Removal is wrongful under the Hague Convention where it breaches the other parent’s rights of custody under the law of the country the child was habitually resident in, and both parents hold parental responsibility under section 61C from the day the child is born. A trip booked over an objection can end in a return application filed from the other side of the world.

Taking a child overseas without consent becomes a section 65Y offence

The trigger most people miss sits in the timing. Filing an application is enough. A parent who books flights in good faith while a parenting application is on foot can be exposed under section 65Z without ever having seen a final order.

The second trap is the wording of the consent itself. A text message saying “yeah fine, take him to Bali” won’t satisfy the section. Consent has to be in writing and authenticated, which in practice means a JP or solicitor sights identification and witnesses the signature. Get that done before deposits, not after.

Then there’s the return leg. Where a child is taken overseas under a valid consent or order, keeping them there longer than permitted, or taking them somewhere the consent didn’t cover, is a separate offence. A missed connection is not the problem. A parent who decides while overseas to extend by three weeks is.

Getting a child passport without the other parent’s consent

The Australian Passport Office requires each person with parental responsibility to consent by completing sections 12 to 15 of the application form, and the person lodging the application carries responsibility for obtaining it. Parental responsibility for this purpose is defined in section 11(5) of the Australian Passports Act 2005, and usually follows the birth certificate.

Two routes exist where that consent isn’t there.

The Passport Office will issue without full consent where you produce an Australian court order permitting the child to travel or to be issued a passport. That is the only path with a reliable outcome.

If your ex won’t sign the passport application

The alternative is a special circumstances request. A Form B9 is lodged for each person with parental responsibility who hasn’t consented, and the application is assessed against subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015. Evidence matters here: an AVO or other family violence order, police or medical reports, correspondence showing your attempts to obtain consent.

Two things about this process are worth knowing before you rely on it. No processing timeframe is published for child applications lodged without full parental consent, because the assessment may be specialised, and the Passport Office’s own guidance says not to book travel until the decision is known. The Department may also contact the parent who didn’t consent to verify what you’ve said. If that contact carries a safety risk, take advice before lodging rather than after.

What needs both parents’ agreement, and what doesn’t

This is where most holiday disputes start, and the split follows parental responsibility rather than who happens to have the child that week.

Joint decisions: the dates, the destination, the passport, whether the child leaves the country at all.

Not joint decisions: bedtimes at the grandparents’ house, what the child eats in Fiji, whether they get an extra hour on the iPad on a rainy afternoon in Queensland. Day-to-day calls during the other parent’s block belong to that parent. Parents who fight the second category tend to lose credibility on the first.

Lock the dates in before the term starts

The arrangement that collapses in December is almost always the one nobody wrote down, because writing it down felt unnecessary in March. Amicable in autumn is not a plan for spring, and the request to put it in writing is not an accusation. Framed properly, a written schedule removes a decision from the relationship instead of testing it.

The clause worth asking for is the one that has dates in it. Not just the holiday dates: dates for the process of agreeing them.

• Parent A nominates preferred blocks by a fixed date before term ends.
• Parent B responds within a set number of days, say ten.
• Silence past that window defaults to a stated fallback split.
• Documents and any consent form are provided within a set period of a written request.

Very few NSW parenting arrangements cover the mechanics of how dates get agreed, and it is the omission that produces the last-minute withdrawal. Consent pulled four days out, for reasons unconnected to the trip, is a scenario we see every year. A response deadline written into consent orders doesn’t stop someone changing their mind. It does make the change visible early enough to do something about it.

Interstate travel counts too

A week in Queensland is the far more common school holiday scenario, and notice clauses are often drafted as though only overseas travel matters. Extend them. Address, contact number, dates, and who the child is travelling with, apply to interstate trips as well as international ones. The information costs nothing to provide and removes the most common flashpoint of the first day of the holidays.

Should your child be the one raising the trip?

Where an older child wants a trip to happen, there’s a temptation to let them make the case to the other parent. Resist it.

Since the May 2024 amendments, any views expressed by a child form part of the best interests considerations in section 60CC, and the weight given depends on maturity and understanding. A court hearing a thirteen-year-old’s preference and a thirteen-year-old negotiating between two parents are different things. The first is appropriate. The second puts a child in the middle of an adult dispute and tends to be read poorly later.

If you’re the parent being asked to consent

Before refusing, ask what happens when the positions reverse. The standard you set refusing July becomes the standard you’re held to in January. Courts notice which parent has been reasonable, and holiday refusals sit in an affidavit for years.

Where the concern is genuine, and the risk is that a child may not come back, two mechanisms exist, and they do different jobs.

A child alert request lodged with the Australian Passport Office flags any application for a new travel document, and lasts up to 12 months unless supported by a court order. It does not stop a child leaving Australia on a passport they already hold, and has no effect on passports issued by other countries.

The Family Law Watchlist does. Administered by the Australian Federal Police at every international airport and seaport, it means a child will normally be stopped from leaving where departure would breach a court order. The AFP will only add a child to the Family Law Watchlist where the request is accompanied by an order limiting travel that asks the AFP to do so, or by a filed application seeking that order. Removing a child from the airport watch list generally requires a further order, so a Family Law Watchlist request is not a step to take as leverage over a disputed fortnight in Bali.

How long does it take to get court permission to travel overseas with a child?

Longer than the school holiday calendar allows, in almost every case.

A valid section 60I certificate must be filed with an application for parenting orders, or an exemption sought, and proceedings can’t start without one. Exemptions cover family violence, child abuse and urgency. A genuine risk that a child won’t be returned can fall within the urgency exemption, though that assessment sits with the court. Attempting family dispute resolution first is not a formality to be resented, either. Judges routinely send parents back to negotiate, and a court order made over a parent’s objection is a worse foundation for the next four holiday periods than an agreement reached in mediation.

Start in the term before the one you’re worried about.

One correction while we’re here, because it comes up constantly: parenting plans are not enforceable, but that doesn’t make them worthless. A court must consider the most recent parenting plan when making orders, which is why the difference between a parenting plan and parenting orders is worth understanding before you sign either.

If holiday travel is looking uncertain this year and you’d rather resolve it before the term ends than in the fortnight before departure, speak to a family lawyer at Hillcrest about putting travel arrangements into orders that carry real dates.