Passports in parenting disputes

When planning to travel internationally with children after separation, there are more important things to consider than whether they will be able to sleep on the plane or whether to get adjoining rooms at the hotel. The seemingly simple step of obtaining a passport for the children could topple over any carefully considered travel plans in an instant. It is important you understand your rights and obligations as a parent in obtaining a passport for your child post-separation to ensure you take the right steps. Read on to find out more!

Who can apply for a passport?

The Australian Passports Act 2005 sets out the conditions upon which a child can be issued with a passport, being that either the consent of each person who has parental responsibility for the child has been obtained, or a State, Territory or Federal Court permits a child to have an Australian travel document, to travel internationally or to live or spend time with a person who is outside Australia.

The Act goes on to explain who has parental responsibility for the purposes of the Act. It says that a person has parental responsibility if and only if:

 1.  The person:

    *   Is the person’s parent (including a person presumed to be the child’s parent because of a presumption of the Family Law Act);

    *   Has not ceased to have parental responsibility for the child because of an order made under the Family Law Act;

 2.  Under a parenting order, the child is to live with the person or they have parental responsibility; or

 3.  Under a Commonwealth, State or Territory law, the person has guardianship or custody of, or parental responsibility for the child.

What if I do not consent?

If you are concerned that the other parent or carer may try to apply for a passport for your child without your consent, there are a number of steps you can take.

You could apply for a Child Alert with the Australian Passport Office, which requires the Department of Foreign Affairs and Trade to give special scrutiny to any new passport application they receive in relation to your child. Please be aware that a Child Alert does not guarantee that the passport will not be granted and it does not prevent a child form travelling internationally.

You could also seek court orders in relation to the prevention of the issuing of your child’s passport, how your child’s passport is to be handled (if already issued), or completely preventing your child from travelling overseas.

For more information about overseas travel!

What if the other person does not consent?

If you are trying to apply for a passport and the other person with parental responsibility does not consent, then it might still be possible to obtain a passport for your child. If you obtain a court order dispensing with the requirement for the other person’s consent for the passport, or your situation meets limited exceptions set out in the Australian Passports Act, then you could still make that overseas trip. The limited circumstances include:

 1.  The non-consenting party is missing, presumed dead or medically incapable of giving consent;

 2.  A family violence order has been made against the non-consenting parent;

 3.  There has been no contact with the non-consenting party for a long time;

 4.  There is an order made under child welfare law granting parental responsibility of the child to a parent other than the non-consenting parent.

 5.  There is an urgent need for the child to travel because of a family crisis; or

 6.  The child’s welfare would be adversely affected if the international travel was not permitted.

It is essential to keep in mind that if you need to apply to the Court, this can be a lengthy process. It is therefore unwise to book anything until the passport issue is fully dealt with.

What Court Orders should I seek?

It is very important to seek legal advice in relation to the most appropriate orders to have in place to ensure that there are no issues in the future should you need to apply for a passport for your child, or should a dispute arise regarding international travel and your child. If you would like to explore the different options available, the team of Family Law lawyers at Sarah Bevan Family Lawyers is more than happy to assist you.

If you are concerned that a parent may be in the process of making a passport application in an attempt to travel without your consent, then you should immediately contact us on (02) 9633 1088 to make an urgent appointment with one of our Family Law lawyers to discuss this. We are able to meet with you at one of our offices, or speak with you over the phone, or via Skype to provide you with comprehensive legal advice – click here to book an appointment with us now.