Short answer
A parent may sometimes take a child from Australia to Sri Lanka after separation, but the legal requirements depend on the circumstances.
If relevant parenting orders are in force or parenting proceedings are pending, sections 65Y and 65Z of the Family Law Act 1975 (Cth) may make it an offence to take or send the child overseas without the written, properly authenticated consent required by those sections or an authorising court order. Sections 65YA and 65ZAA separately address retaining a child overseas beyond the authority given by consent or court order.
If there are no parenting orders and no pending parenting proceedings, those particular offences do not automatically apply. Australian family law does not impose a universal rule that every overseas trip by a separated parent requires the other parent’s consent. However, consent, a passport or a court order may still be practically or legally necessary. Unilateral travel may also lead to urgent parenting proceedings, especially if it disrupts existing care arrangements or creates a risk that the child will not return.
Key points
- Check all parenting orders, pending proceedings, injunctions and appeals before making travel arrangements.
- A child’s passport and permission to travel are separate issues. A valid passport does not override a court order or Family Law Watchlist restriction.
- A Child Alert Request concerns the possible issue of an Australian passport. It does not prevent departure on an existing valid Australian or foreign passport.
- The Family Law Watchlist may prevent departure where an appropriate court order or request is in force.
- A temporary visit is legally different from international relocation, which means changing the child’s country of residence.
- The Hague Child Abduction Convention operates between Australia and Sri Lanka, but a return order is not automatic and does not determine final parenting arrangements.
Travel where there are no parenting orders or pending proceedings
Section 61C of the Family Law Act 1975 generally provides that each parent of a child under 18 has parental responsibility, subject to any court order. Separation does not itself remove that responsibility. Section 61CA encourages parents, where safe and subject to court orders, to consult about major long-term issues and consider the child’s best interests.
Where there are no relevant parenting orders and no pending proceedings, sections 65Y, 65YA, 65Z and 65ZAA do not create a general offence merely because one parent travels without the other parent’s consent. Whether a short trip may lawfully proceed will nevertheless depend on the child’s passport, any other injunction or restriction, the existing care arrangements and the purpose and duration of travel.
Written agreement remains prudent. It can record the destination, departure and return dates, itinerary, accommodation, contact arrangements, insurance and confirmation that the child will return. If agreement is not possible and the proposed trip is disputed, a parent may seek a parenting order permitting the travel.
Travel where parenting orders or proceedings exist
Section 65X defines the parenting orders covered by the overseas-travel offence provisions. They include orders dealing with whom a child lives with, spends time with or communicates with, or who has parental responsibility.
Section 65Y applies where a relevant parenting order is in force. In the circumstances specified by that section, a party to the proceedings, or someone acting for a party, commits an offence by taking or sending the child outside Australia without either the properly authenticated written consent of each person in whose favour the order was made or a court order authorising the travel.
Section 65Z applies where proceedings for a relevant parenting order are pending. In the circumstances specified by that section, a party, or someone acting for a party, must not take or send the child overseas without the properly authenticated written consent of every other party or an order made after the proceedings began. Section 65X also treats proceedings as pending while an appeal is pending.
Sections 65Y and 65Z each provide a maximum penalty of three years’ imprisonment. Each also contains a limited exception where the person believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as perceived by that person. The existence of this exception is fact-dependent and should not be assumed without urgent legal advice.
Section 51 of the Family Law Regulations 2024 prescribes how consent under these provisions is authenticated. A prescribed person must endorse the consent with statements confirming satisfaction as to the signatory’s identity and that it was signed in that person’s presence.
Retaining a child in Sri Lanka
Authority for a holiday is not authority for an indefinite stay. Section 65YA applies where a child was taken overseas under consent or a court order while a relevant parenting order was in force, but is then retained outside Australia beyond what the consent or order permits. Section 65ZAA addresses corresponding conduct while parenting proceedings are pending.
These offences also carry a maximum penalty of three years’ imprisonment and contain the limited family-violence exception described above. Their application depends on the precise consent, orders, proceedings and conduct involved.
Obtaining a child’s Australian passport
Passport consent is distinct from permission to undertake a particular journey. Section 11 of the Australian Passports Act 2005 generally prevents the issue of an Australian travel document to a child unless each person who has parental responsibility for passport purposes consents, or a qualifying court order permits the child to have a travel document, travel internationally, or live or spend time with a person outside Australia.
Section 11 also allows limited exceptions, including specified special circumstances and certain welfare or urgent family-crisis situations. The passport decision-maker may instead determine that the dispute should be dealt with by a court.
A parent who cannot obtain the required passport consent may consider the administrative special-circumstances process or apply for an appropriate court order. Neither pathway guarantees that a passport or travel permission will be granted.
Child Alert Request and Family Law Watchlist
A Child Alert Request warns passport authorities that an Australian passport application may be made for a child without proper consent. According to the Federal Circuit and Family Court of Australia, an administrative child alert is generally valid for 12 months, while a court-ordered alert remains effective until the child turns 18 or as directed by the Court.
A child alert does not cancel an existing passport, prevent departure on a valid Australian or foreign passport, or control passports issued by another country.
The Family Law Watchlist is different. The Court may restrain a child’s removal and request that the Australian Federal Police place the child on the Watchlist. A child subject to an operative restriction may be stopped from departing regardless of which parent accompanies the child. Parental agreement alone may not remove the restriction; a further court order may be required.
Under section 67ZD of the Family Law Act 1975, the Court may also order delivery of Australian or foreign travel documents where it considers there is a possibility or threat that a child may be removed from Australia.
Temporary travel and international relocation are different
A temporary trip involves an intended return to Australia within an agreed or ordered period. International relocation involves moving the child’s home to Sri Lanka or remaining there on an ongoing basis.
Relocation should be addressed expressly through informed agreement or a parenting order. If a court is asked to decide, the child’s best interests are the paramount consideration under sections 60CA and 65AA of the Family Law Act 1975. The Court may consider the proposed living arrangements, relationships, safety, education, practical effect on time with each parent and other circumstances listed in section 60CC.
Further context about coordinating legal issues in both countries is available in the article about whether an Australian lawyer, a Sri Lankan lawyer or both may be required.
The Hague Convention between Australia and Sri Lanka
The 1980 Hague Convention on the Civil Aspects of International Child Abduction has operated between Australia and Sri Lanka since 1 January 2003, following Australia’s acceptance of Sri Lanka’s accession on 23 October 2002.
The Convention ordinarily applies until a child turns 16. Under Articles 3 and 4, a removal or retention may be wrongful where the child was habitually resident in a Convention country immediately beforehand, the conduct breached rights of custody under that country’s law, and those rights were being exercised or would have been exercised but for the removal or retention.
“Habitual residence” generally concerns where the child’s life was ordinarily based before the disputed removal or retention. “Rights of custody” may arise by operation of law, a court or administrative decision, or a legally effective agreement. The application of these concepts depends on the facts and relevant law.
A Hague application seeks return to the country of habitual residence so that parenting issues can ordinarily be determined there. It is not a final decision about which parent should care for the child. A return application is not automatically successful: the Convention contains requirements, time considerations and limited grounds on which return may be refused.
Practical steps before proposed travel
- Obtain current copies of all parenting orders, injunctions, applications and appeal documents.
- Check whether the child is on the Family Law Watchlist or subject to a child alert.
- Confirm whether the child has a valid passport and whether passport consent or a court order is required.
- Provide the other parent with a written proposal covering dates, itinerary, addresses, flights, communication and return arrangements.
- If sections 65Y or 65Z apply, ensure any consent satisfies the statutory authentication requirements.
- Apply to the Court sufficiently early if agreement cannot be reached. The Court may require detailed evidence and may consider safeguards such as return tickets, communication arrangements, passport controls or financial security.
- Treat any proposal to live in Sri Lanka as international relocation, not holiday travel.
If departure is imminent or the child is already overseas
If there is an imminent risk of departure, obtain urgent advice about orders restraining removal, delivery of passports and placement on the Family Law Watchlist. Preserve passport details, recent photographs, proposed flight information, messages and overseas addresses. The Court has an out-of-hours process for appropriate emergencies.
If the child has already been taken to or retained in Sri Lanka, promptly record the date and circumstances of departure or non-return, gather orders and evidence of the child’s life in Australia, and contact the Australian Central Authority about a possible Hague Convention application. Immediate safety concerns should be reported to police.
Australian and Sri Lankan legal advice may be required. Delay can affect the available procedure and evidence. General cross-border materials are collected in the website’s Australian and Sri Lankan legal resources.
Conclusion
The correct legal pathway depends on whether orders or proceedings exist, what consent has been given, passport and Watchlist status, and whether the proposal is temporary travel or relocation. A valid passport alone is not permission to disregard family-law restrictions.
This article is general information only and does not create a solicitor–client relationship. Prompt, fact-specific advice should be obtained from an appropriately qualified family lawyer, particularly where departure is imminent or a child has already been removed from or retained outside Australia.