Factsheet

Obtaining a passport for your child after separation or divorce

By Fraser Bax / 30 August 2016

An Australian passport can only be issued to a child under the age of 18 years if both parents (or those with parental responsibility) give their consent. If one parent refuses to give consent, the other parent can:

  • make an administrative application to an Approved Senior Officer of the Department of Foreign Affairs, or
  • make an application to the Federal Circuit Court or Family Court of Australia.

Background

Under the Australian Passports Act 2005 (Cth), a passport can only be issued to a child under the age of 18 years once written consent is provided by those with parental responsibility for the child – usually the parents of the child. In practical terms, this means that both parents are required to sign the passport
application.

However, in circumstances where the parents are separated or divorced, one parent may refuse to sign the passport application in fear that their child will be taken from the country without their consent.

Your first step

If you would like to obtain a passport for your child, your first step is to approach the other parent and ask if he or she will consent to a passport being issued, and provide him or her with a passport application to sign.

You should keep copies of all correspondence and documents that you provide. If you need to take the matter further, they will form the basis of your evidence to a court or to an Approved Senior Officer of the Department of Foreign Affairs that you attempted to obtain the other parent’s consent.

What happens if consent cannot be obtained?

In the event that the other parent refuses or fails to give consent for the issue of a passport, there are two options to explore:

  1. making an administrative application to an Approved Senior Officer of the Department of Foreign Affairs, (who is an authorised delegate of the Minister for Foreign Affairs) to request that a passport is issued; or
  2. making an application to the Federal Circuit Court of Australia or the Family Court of Australia to seek an order that a passport be issued.

In the case of an application to the Department of Foreign Affairs, the Approved Senior Officer may issue a passport where ‘special circumstances’ exist. This includes where the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally or where the child urgently needs to travel internationally because of a family crisis.

‘Special circumstances’ also include where the non-consenting parent is missing, uncontactable, medically incapable of consenting or is not an Australian Citizen (providing a separation occurred before the consenting parent arrived in Australia). A family violence order against the non-consenting parent may also be considered a ‘special circumstance’.

If you have orders that provide that only one parent has parental responsibility (sole parental responsibility) then an Approved Senior Officer may issue a  passport on that basis. You should obtain advice about the previous orders that may have been made before making an application to the Minister for Foreign Affairs or to a court.

Making an application to the Minister for Foreign Affairs

The Australian Passports Act 2005 (Cth) allows a written request to be made to an Approved Senior Officer of the Department of Foreign Affairs, as they can make a declaration, based on the special circumstances of the case, that a passport can be issued without the consent of both parents. However, the Approved Senior Officer also has the power to refer the matter to an appropriate court to make a decision, and will generally not issue a passport on this basis if there are proceedings before a court which may affect the right of a child to travel internationally or who has parental responsibility for the child.

To make an application to the Department of Foreign Affairs, you will need to provide:

  • a statement as to why the necessary consent has not been, and cannot be, obtained from your spouse; and
  • details of the special circumstances that are relevant to that application.

Application to the Court

Under the Family Law Act 1975 (Cth), the court is not able to compel the Minister for Foreign Affairs to issue a passport. However, the court is able to make parenting orders which expressly permit a child to travel overseas, and which grant parental responsibility to one parent in relation to the issue of passports.

If you are not able to obtain the other parent’s consent and a passport was not issued after an application to the Minister for Foreign Affairs, it may be necessary to bring a further application to the Family Court or Federal Circuit Court seeking that:

  1. an order be made allowing the child to travel outside Australia; and
  2. the other parent sign all documents necessary to enable the child to be issued a passport.

In the event that you were to make an application to the court, an initiating application and an affidavit would need to be filed, setting out:

  • the reason for the travel, and why you require a passport to be issued for the child;
  • the attempts that you have made to obtain consent from the other parent; and
  • if necessary, any other orders such as who is to retain the passport when it is not in use.

The contents of this paper are not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations. HopgoodGanim Lawyers cannot accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this paper.

Authors
Fraser Bax
Senior Associate
Fraser is a Senior Associate in our Family and Relationship Law practice.

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