How does the Court determine whether overseas travel should be permitted?

In parenting proceedings, the Court is often faced with determining whether Orders should permit overseas travel. The core of the considerations comes down to the wellbeing of the child and the confidence that the Court has that the departing parent will return. In making their assessment, the guidance from the following cases is often considered:

Kuebler & Kuebler (1978) FLC 90-434 at 77, 205-206:

The case of Keubler sets out the following factors for consideration when an application involves a parent taking a child out of the jurisdiction:

1. The length of the proposed stay out of the jurisdiction;
2. The bona fides of the application;
3. The effect on the child of any deprivation of access;
4. Any threats to the welfare of the child by the circumstances of the proposed environment; and
5. The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

Line & Line (1997) FLC 92-729

Expanding upon Kuebler, Line provides guidance for assessing the risk posed by a parent of not returning to Australia, being:

1. The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);
2. The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);
3. The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); 
4. Whether the country of travel is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction; and
5. The financial circumstances of both parties.

The case also sets out factors for consideration of whether an appropriate security bond should be set for a departing parent, including:

1. whether the sum will realistically entice the person removing the children to return and to adequately provide the party remaining in Australia to take action for the return of the children.
2. The degree of risk that the departing parent will not return.
3. Whether the country of travel is a signatory to the Hague Convention on Child Abduction, and the likelihood of deviation to a non-convention country.
4. The financial circumstances of both parties, and any hardship to either party if the level of security was increased or decreased.

In this case, which was an appeal, it was held that the return air fare between the countries ($3,000) was not an appropriate level of security and the security was set at $20,000.

DeLuca & Farnham [2019] FamCAFC 100 at 4.49

This case affirms the propositions set out in Line & Line, and expanded on a few points as follows:

• When considering the risk of a departing parent not returning, the Court should assess the existence and strength of:
• Continuing ties between the departing parent and Australia – such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here;Possible motives not to return – including the level of conflict between the parents, particularly over child-related issues;
• Possible motives to remain in the other nominated country – such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there.
• When determining the weight to place on whether or not a country is a party to the Hague Convention, bear in mind
• there could be little to prevent a party deviating to a non-Hague country after their departure from Australia.
• When considering the parties’ financial circumstances, questions of hardship to the children flowing from that parent’s financial hardship should be considered.

These principles have been recently applied in the cases of: Arundell & Skewes (No 2) [2026] FedCFamC1F 79 and Doyle & Baldini [2025] FedCFamC2F 1019.

Once there are parenting orders in place, removing a child from Australia is a criminal offence, punishable by 3 years imprisonment (Section 65Y of the Family Law Act 1975), unless the travel has been agreed by the parties in writing or has been authorised by Orders.