Children and Passports After Separation

By 13 March 2019Family Law

Planning a holiday overseas and need a passport for your child?

If you are planning to travel overseas with your child, you should not book anything until you have written consent of the other parent or an Order of the Court.

Before finalising any overseas travel plans involving your child, there are 2 things to consider:

  1. Do you have a valid passport for your child?; and
  2. Do you have the other parent’s consent to the proposed travel?

I have a passport for my child, so can’t I just take my child on an overseas holiday?

Not necessarily.

If there is a parenting order in place, it is an offence under the Family Law Act 1975 to take a child out of the Commonwealth of Australia without either the written consent of the other parent or a court order allowing the travel to take place.

If the other parent won’t consent to your proposed travel plans, you should make an application to the Court for an order to allow the proposed travel to take place.  In considering your application, the Court will consider whether the proposed travel is in the best interests of the child.

In some cases where there is a concern about a parent not returning a child after the proposed holiday, the Court will impose conditions on the travel such as depositing a sum of money as security, to be refunded when the child is returned to Australia.

Where one parent has a concern about the other parent taking a child overseas, that parent can apply for the child to be placed on the Family Law Watchlist.  To make this application, you need to complete a Family Law Watchlist Request form which is sent to the Australian Federal Police together with either:

  • a copy of the current parenting order which limits the child’s travel; or
  • a copy of an application which has been filed with the Court which seeks to limit the child’s travel and seeks to place the child on the Family Law Watchlist; or
  • a copy of an appeal which has been filed with the Court against an order which relates to a child’s travel overseas in which it was sought that the child be placed on the Family law Watchlist.

I don’t have a passport for my child.  Do I have to get the other parent’s consent?

To obtain an Australian passport, each parent who has parental responsibility for a child must sign the passport application.

It should be noted that the requirements for obtaining passports from other countries may differ to the requirements for obtaining an Australian passport.

Each parent is deemed to have parental responsibility for the purposes of the Australian Passports Act 2005 if their name is on the child’s birth certificate.

Section 11(5) of the Australian Passports Act 2005 provides that a person has parental responsibility for a child if, and only if:

  • The person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
  • Under a parenting order the child is to live with the person, or the person has parental responsibility; or
  • The person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a State or Territory.

When all parties who have parental responsibility for a child sign the passport application, the application can be lodged for a passport via an Australian Post Office.

If written consent is not obtained from the other parent, you may be able to still apply to have a passport issued under the special circumstances set out in the Australian Passports Act 2005.  These circumstances are limited and so in most circumstances, it is advisable to talk to a family law solicitor about applying for an order to allow a passport to be issued and to allow your proposed travel to take place.

Worried about your child travelling overseas without your consent?

If you are concerned that your child may leave Australia without your permission or there has been a threat that the child may be removed from Australia, you should seek legal advice as soon as possible.

We can provide you with advice on how to:

  1. Prevent a passport being issued;
  2. Require a person to deliver a child’s or accompanying adult’s passport to the Court;
  3. Place the child’s name on the Family Law Watchlist, which can prevent a child from leaving Australian even if they have a valid passport.

Child Alert Request

If you wish to prevent an Australian passport being issued, you can lodge a Child Alert Request at any Australian Post Office. It should be noted however, that a Child Alert will NOT stop a child from travelling if they already have a passport issued by Australia or another country or if the other parent is legally entitled (such as through a Court Order) to obtain a passport for the child issued by Australia or by another country.