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Getting the court's permission to take kids overseas - and to

What is involved in asking the court's permission to take kids overseas for a short holiday? And to

I have 2 situations that I would like some advice on.

My ex wants to take the kids overseas to a non-Hague-convention signatory country. There is a wedding that they have been asked to be flowergirls for. I have told him that I would let them go on the condition that I travel with them, accompany them for the whole trip except on the day of the wedding, then bring them home with me. He is calling this unreasonable (that's the mild version haha) and now accusing me of preventing the girls from going. I do think it's a long-shot that he would try anything, but really, nothing would surprise me. So we are at a stalemate which I guess could be resolved by a judge, but would this have to be an expensive and complicated process? Is it just a matter of him putting some paperwork into the court if he wants it to go down this path and probably paying some money and appearing? I don't think it's that complicated an issue, and I'd be more than happy to go and argue for myself that for the girls' safety, to ensure their return to Australia and for my own peace of mind, it is best to put that condition on them going, I'd pay my own way etc etc.

Also, the girls have been asked to be flowergirls at a wedding on my side (in my city) - that falls on one of his days. I'd bet my life that he will refuse to let me have the girls with me that weekend simply because of this situation with the other wedding. It's something that I would apply to the court for if he does refuse, and I think this one would be a no-brainer, especially as I would offer him time with the girls in return. Again, how would I go about seeking an order that says I can have the girls with me that weekend?

(I'm sure I sound very trigger happy but if there was some way to make it happen without going down this path, believe me I would!!!!!!)
What grounds do you have in respect of the girls not being returned?
Are there any indications that the other parent is preparing to relocate?
How old are the girls and do they know their own minds?
Is the nature of your communication in respect of what is in your children's best interests so acrimonious that you are unable to discuss? Are you able to use this instance to improve that essential element?
Do you have anyone who can act fairly as a mediator? It would seem that court orders are not an expedient resolution.
Considered responses need more details.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Mum2G said
…My ex wants to take the kids overseas to a non-Hague-convention signatory country. There is a wedding that they have been asked to be flowergirls for. I have told him that I would let them go on the condition that I travel with them, accompany them for the whole trip except on the day of the wedding, then bring them home with me. He is calling this unreasonable (that's the mild version haha) and now accusing me of preventing the girls from going.
There are options here and it probably is extrteme that you need to go, however there are many cases where children are abducted to countries (Hague and otherwise) that are complex and difficult to get back. So I can undesrtand your concerns. There is little information in relation to the children's age etc. but assume fairly young (under 9)

Have you considered asking for a sizeable guarantee on his property / assets and depending on how well off he is would dictate the sort of gurantee. Has he a job and family here that would tie him to Australia. Could any of his family here also put up guarantees as they are not likley to do so if there is any suggestion the children would not return ? A local solicitor should be able to create the appropriate documents and there are some here that should put their hand up. I am not sure how a judicial officer will "resolve it" easily where neither of you can agree to much in relation to the trip. A juidicial hearing will take some time so I assume you have some time on your hands before this has to go ahead or otherwise. What other options do our readers suggest here? Even if you were to go there is no certainty you would be any better off. It would depend on your citizenship status in that country if you could stay longer than ticketed and if the children have dual nationality. Some countries only require one parental signature to effect passports.

Certainly your "ex" needs to take your concerns very seriously and come up with some ideas to give you the comfort required. By the way as an observation your site user name doesn't lend me to think any comprimise might be forthcoming here.
Mum2G said
Also, the girls have been asked to be flowergirls at a wedding on my side (in my city) - that falls on one of his days. I'd bet my life that he will refuse to let me have the girls with me that weekend simply because of this situation with the other wedding. It's something that I would apply to the court for if he does refuse, and I think this one would be a no-brainer, especially as I would offer him time with the girls in return. Again, how would I go about seeking an order that says I can have the girls with me that weekend?
You are probably right and in view of non resolution to item one, retaliation via the second point would be likley unless there is more give and take somewhere along the way. The problem with a judicial determination is you may not get what you want. I have seen decisions where the judicial officer says well arrange things in the time you have the children. Difficult in some cases I must say. So it is not a "done deal". I think you need to resolve the first issue as a matter of priority.

Last edit: by OneRingRules


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks for your replies

Thank you so much for your responses. This is the sort of information I was after, I would like to resolve this without court and I DO NOT want the girls to miss out on this opportunity, so I am very open to suggestions on how this could happen.

First my site name - I don't know how to change it!!! I was very revved-up when I first joined here, my ex having driven me to the point where I was done trying to make a 50/50 arrangement work and down the court path we went………… If anyone can tell me how to change my site name, I'd love to do it!

OK Kids are 4 and 6. No dual citizenship, they were born here and never had passports. The trip is in about 6 months, so there's time to work it out. According to him, his whole family hate me, and I don't even know if he would really ask one of them to mediate. He would not agree to anyone on my "side" - family, friends - to take on such a role. The handful of mutual friends we still have are not people that I would want to drag into something like this, they have remained mutual friends on the understanding that they can stay out of things.

Would he really abduct them? I don't know, but it's not a chance I'm prepared to take. Until we went to court recently and got orders, the ex was happy to use the girls as his weapon of choice to get back at me. He was cranky with me - he'd drop the girls at my place late at night at the beginning of his school holiday week. I'd refuse to give on some ridiculous demand (such as change my surname) - he'd decide he only wanted them every second weekend, which would last a couple of weeks and he'd want them back 50/50. Next minute, he'd want full custody and threaten I would never see them again. I wouldn't give him recently-received inheritance money - he got them to call me to say I had all his money so he would have to cancel their birthday parties and they couldn't go to netball anymore. He will disagree with something simply because it was my idea or request. So, really, I do not know.

His job is secure (at same govt dept as me) but he threatened to quit work so he didn't have to pay me child support. He rents, has no assets worth mentioning. His family's assets could be an option, especially the family member who is getting married - although they don't own their place outright. I guess the best person would be someone who will be there on the trip and can be a huge influence if he decided he wanted to do something stupid. Does someone have to own an asset (such as a house) outright for it to be put up as security in a situation like this?

And yes, our communication about the best interests of the children is so acrimonious that the family law court judge told us it was despicable. Not something I'm proud of, but certainly a kick in the pants that I needed, although I stand by my claim that he was the one contributing most to the "poisonous" (my barrister's word) nature of the communication. Still, nothing has changed on his part, the insults and abuse continue and he just doesn't get it. Words such as "twisted", "inane", "disgraceful", "irrational", "disturbing", "absurd" and "declining mental health" are common terms, and they are just from 2 recent "discussions", one of which concerns this trip. He firmly believes that what he says is the truth, therefore he can say it, despite court orders that stipulate that our communication about care of the girls is to be respectful and non-abusive. There is absolutely no way that I can think of to deal with him on a level, rational playing field, and it makes sharing parental responsibility VERY near impossible.
It is appropriate to take precautions based upon what you have written. That's your side.
A caveat that is in place is that your permission is required for passports, also that you appear to be the primary carer. That raises what is the content of the orders and as to whether there are any restaints on the children leaving the country, an airport watch.
The onus is on the father to effect any gaurantees. Undertakings to a court can be a very useful instrument. These may not be applicable in the country where he might go, yet they do go some way to your obtaining significant effect should he try to move elsewhere. Not much consolation perhaps?
Read re-location judgements if possible to identify any issues that might be relevant.
If he has limited funds then an insistence on return air tickets (non-refundable) and proof that he has the means to deal with any health emergencies that might eventuate are worth insisting on. There are other issues that might raise the bar without resorting to the court.
The statements and inconsistent contact are worth noting in a diary lest future occasions need those facts.
Return to what is in the girls best interests (not your own) from an objective perspective and you could find that the future will self-correct.

Last edit: by verdad


What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Hi Verdad,

More great suggestions, thank you! I DO feel that I am putting the girls' best interests first, however of course it can be hard to be objective. Your last line suggests that from an outsider's point of view, I'm not doing such a great job - I don't think I'm up for another butt-kicking like I got from the judge, but do you have any suggestions as to how I might achieve a more objective stand-point?
It is a challenge for all and to be non-emotive and rational at the same time.
Read carefully what the judge has said and consider how you might assimilate those comments into your perspective and way of being.
Many a judge sees a court hearing as a moment in which the parties can transform their behaviour in relation to the other party, especially to the benefit of the children.
In this regard I feel the judges do offer something of substance to the parties. unlike the solicitors, they are concerned by the collateral damage that becomes the parties they hear. Their words can to my mind penetrate to the essence of the persons they observe as against many others similarly situated.
In every moment it is possible to observe as to why one does as one will do. Capturing one's self in such moments and re-mediating one's thinking is self beneficial and may benefit others.
Consider how it takes two to make a fight, allowing the father if possible to wrestle with himself in the long term might assist him to act responsibly. Give him the space to be a better person. Give merit to his better qualities as the children aren't attracted to negativity. Teach yourself always!
The children in the long term will possibly gravitate to wards the parent who seeks not to align them and thus exclude the other parent. The children sense tensions and can seek respite from them.
Act so that when the children have 21st birthdays or weddings that there is no residual tensions and that they feel that they are loved equally. Perhaps by going forward with that minding all will fall into place.
Khalil Gibran "On Children" said it better than most:
"They come through you but not from you,
And though they are with you yet they belong not to you."

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
I could suggest many things for you to think about here but in this case you are best to try to see how a judge would view it if you made an application.
You have 2 options.

1. Contest the trip on the grounds of the children are too young to be away from a parent for a length of time and the risk of abduction.This as you know will have implications on your co-parenting relationship.
What are your grounds and do they have a reasonable basis?
This could include - he has family or support network over there, he has no family/friends in Aust, he has no job or lifestyle or anything else to tie him to Aust, he has the financial support to leave, he has transferred assets, he has passport or citizenship there, he has tried to or talked about taking the children away before, he has made plans/arrangements to do so, the children are on the watch list. If it is just that you don't want to take the chance, ask yourself what a judge would think of this.


2. Agree to them going. If you do agree you would be entitled to some conditions to ensure their welfare and return.
Would a judge agree that you going would provide this guarantee, considering that you both have parental responsibility. Would a judge see this as you being, lets say, overly assertive?
Request a reasonable but short length of time for them to be away. Children this age 3 or 4 weeks is too long away. A week or 10 days may be enough. Depends where it is. If it a 4 hour flight then 4 or 5 days may be enough.
Request a surety/security. This is reasonably common and accepted. What it will be is up to you. Return tickets, definately. Visas for only the duration, yes. An itinerary yes. Contact details of where they are staying, yes, daily contact yes, travel insurance particularly for health care and repatriation for Australian hospitals, yes. A house title his or relatives, money held in deposit, it depends. Remember the more you ask for the more resistance you will get. Be reasonable in the circumstances. If it was Christopher SKASE 1 mill would not be enough. If he is not wealthy a few thousand may be a lot. 
An agreement that you can take the children to your friends wedding.

This may be a step in the right direction to improve the relationship but will by no means fix everything. This will take a long time. It is just a small step.

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Thank you once again for well thought out responses. I have put together a proposal with conditions under which I would consider letting the girls go. Of course it reeks of "I DON'T TRUST YOU!!!" but not by the way I have said any of it, simply the fact that I am placing conditions on it. I'm pretty sure I will get a hostile reply, and I think it will be along the lines of "shove your conditions somewhere that they will never see the light of day" but if he is not willing to even discuss what I have asked, then as far as I am concerned, that is the end of it. As for the other wedding… I guess I'll just have to see where things are at as it gets closer (it's near the end of the year) and see what opportunities I have for a trade-off between now and then.

Thank you again, I'm very much indebted to you all for helping me find another way to deal with this. I love this site!

PS Verdad, I am looking into changing my site name…..
The site admins will deal quickly with a change of name if required.

Some good comments coming out here. I would be writing in the context of "suggestions" rather than "conditions" and see what sort of response that gets. It is reasoanble to expect that satisfactory conditions exist prior to allowing such a trip. You need to allow at least 6 to 8 weeks for the passport office to deal with things so you need to have some firm indications of the sorts of securities that will be in place, earlier than later.

Patronus has made particularly good commentary… Children this age 3 or 4 weeks is too long away. A week or 10 days may be enough. Its a great experience for them but its also clearly a large responsibility for the father to guarantee the return and appropriate provisions around that. The father here needs to come up with something and accept that it is a big ask and that there will have to be give and take here. You sound like you will be able to help him come up with something that will get this under way. It will take some tricky negotiations but the children will benefit from these negotiations so I encourage you to persevere and try to get something over the line.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Verdad - I changed my name!

Well things have taken a bit of a twist. The ex basically said "go jump" about the financial security thing, but….. the groom emailed me. He really wants the girls to go, and so I put together what I hope came across as a diplomatic reply. I'm taking the angle of wanting the children to be safe, because the bottom line is, I just don't feel comfortable with them going to a foreign country where the safety is questionable (think, perhaps, Thailand? Indonesia? Malaysia?). Once he (ex) had scoffed at my suggestion of going with them, I think I lost sight of the fact that whilst I didn't want him to abscond with the children, all the financial guarantees and undertakings to court would not make me feel at ease with them travelling somewhere that they were so far out of reach. So I'm hoping to appeal to the groom's more rational thought processes and perhaps he will realise that this doesn't have to be an all-or-nothing affair - if they give a little (ie deal with the fact that I'm on the same island with them) then they can get a lot. I don't want to go to their wedding, I don't want to interfere. But if the girls were to stay with me, I could ensure that they had time to do fun things where they are, and help them get ready for the wedding, and bring them home with me afterwards.

I'll let you know how it goes from here.

(Yes, being able to negotiate a win-win-win-win situation with the ex would be ideal… but at least if I can get the kids there under conditions that I am completely comfortable with, via the groom instead of him, then at least the girls and the groom and I get wins.)
I just want to clarify what you are saying.

Are you saying that you are determined to take the children to this country, in your care, and then release them to your ex for the time period of the wedding and then they are to immediately return to you? And you are saying that they need to be in your care to be safe because you do not feel comfortable that they will be safe in his care? If so why will they not be safe with him but would be safe with you?

 
I don't want to interfere. But if the girls were to stay with me, I could ensure that they had time to do fun things where they are, and help them get ready for the wedding, and bring them home with me afterwards.
  It may be that this is what he wants to do and he does see it as you interfering.

I do think it's a long-shot that he would try anything
This is from your first post. Can you clarify. Why is it now that you do not want the children to go with him? Is is because of abduction, being away from you, safety or you don't want him to enjoy a holiday with the children?

An overseas trip is a big deal, particularly at such an age, and you are entitled to some assurances and even to object to it. However I suspect he will see what you are asking as "I will take them on a holiday and they will have fun with me and you can have them for a few hours for the wedding and they are to come back to me to continue their holiday, because I don't trust them with you."

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Patronus,

I was ambiguous in what I said - when I said I would ensure that they had time to do fun things, I meant with him and his family, not with me. I would gladly stay right out of everyone's way, as much as possible in a resort, and let them enjoy their holiday with their dad. That was what I told him when I first mentioned me going.

Having said that, I have just checked the foreign affairs website and now I am more nervous! The overall warning for the country is to exercise caution, and the part they are going to is "reconsider the need to travel" - that's the last step before "Don't travel"!!!

We advise you to exercise caution and monitor developments that might affect your safety in xxxx because of the risk of terrorist attack.
  • Pay close attention to your personal security and monitor the media for information about possible new safety or security risks.
  • We strongly advise you to reconsider your need to travel to the islands, dive sites and coastal areas of xxxx because of the high threat of kidnapping by terrorists and criminals. In the past, terrorists have kidnapped foreigners from coastal areas of xxxx, the islands and surrounding waters. If you do decide to travel to this region, you should exercise extreme caution.

No, they are not going to be safer from accidents, sickness, kidnapping etc because I am there. But I WOULD be there, where I could see they were safe and if (heaven forbid) something were to happen, I would be right there. I am their mum, and to let them travel overseas at such a young age without me terrifies me - especially to a country where  The groom has been very reassuring that the girls would return, although the fact that the ex would do most of what I ask as far as ensuring their return, except provide a financial security, has me worried somewhat. I know he has friends overseas, and his brother has a huge network of overseas friends, so it's not a done deal that he would return. As I said to the ex, if he can't find someone willing to bet their house that the kids would come back, what makes him think I would bet my kids that he would bring them back?

Having read that on the FA website though, it looks like there are threats that I hadn't really considered as realistic. Perhaps I shouldn't send them at all. Would a court tell me I had to let them go??

Back to the other issue, though - the bottom line is, the ONLY reason that he doesn't want me there is that his family would feel uncomfortable, just knowing that I was there in the resort. It would cost me around $3k to go over there with them, but that is a price I am willing to pay for my peace of mind. I shouldn't have to spend all that money to go on my first overseas holiday in 12 years, then hide in a $400/night room, just to appease their immature feelings. But I would do it, for peace of mind. I can't compromise any more than that without completely denying my own motherly instinct, or else not letting them go at all. They are compromising nothing. How is that fair? How is them being so uncomfortable with me around, best for the girls?

Would a court tell me I had to let them go??
Every case is different but this is not necessarily the case at all, particularly at such an age.

However reading your posts it would seem that this is less to do with legislation and more to do with your relationship. If I recall you are still fairly early stages of separation and resolving care arrangements. Going overseas with young children is a big ask from him. Your response is being seen by him as over the top. You are both seeing it for various perspectives and rightfully so. If we all put ourselves into eachothers shoes we would probably do the same. If I may suggest you both look into some joint conselling. This will not resolve this issue immediately but is for the longer term. I may take some time but hopefully will have some value in the years to come. It takes a long time to build some form of trust and respect after the turmoil of a difficult separation and anything you can do to help it along is a good thing.

As for you sorting out your respective weddings, it is something you will have to try to sort out. It would seem some mediator, perhaps a professional service, may be an option. If it can't be sorted out then they will have to go without being flowers girls this year. I hope it doesn't get to court. This will be a backwards step.

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Patronus said
I hope it doesn't get to court. This will be a backwards step.
If it does and the other side or their representatives have been reading this public thread they will know where "you are coming from" and some of your next moves.

Thanks Petronus. You are correct - this is absolutely about our relationship. I find it hard to believe that he would agree to counselling or mediation on this issue, but I will look into it. We do need something, that's for sure. Right now I think my communication with the groom is a good start at resolving this particular issue, so I'll keep working through that and see where it leads.

Conan, I'm not really worried about this thread being read - it's nothing I'm not already discussing with the groom. But thank you for expressing your concern.
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