In order to travel outside of Australia, both children and adults, regardless of age, are required to hold a valid Passport. Unfortunately, due to marriage breakdowns and other such factors, the process of applying for a passport for your child can become a difficult exercise. We offer expert legal advice to assist you in either applying for, or legally preventing, the grant of a passport to your child.
What is a ‘child’?
A child is defined in the Australian Passports Act 2005 (‘APA’) as a person under 18 years of age who has never been married. Parental responsibility subsists over ‘children’ and as a result, certain consent requirements must be satisfied prior to the issuing of a child’s passport. In addition, each passport application must be supported by original documents to prove the child’s identity and citizenship.
Consent requirements to Obtain Children’s Passports:
The general rule is that one of the following is needed to apply for a children’s passport:
- The written consent of the person or persons that have parental responsibility of the child;
- The written consent of BOTH of the child’s parents; or
- An Australian Court Order permitting the child to have an Australian Passport.
Generally, people with parental responsibility are the parents named on the child’s full birth certificate; their parental responsibility can only be removed by an Australian court. If only one parent is named on the child’s birth certificate, but another person has parental responsibility, that person must also provide consent before a passport can be issued. In some cases, other people or entities (such as welfare agencies) have parental responsibility under Australian law.
What if consent cannot be obtained
The only way to guarantee the issue of a passport to a child without full consent is with an Australian court order. These orders would permit the child to have an Australian passport, travel internationally or live or spend time with a person outside Australia.
Applications for passport orders are dealt with as ‘Parenting Orders’ under the Family Law Act 1975. Before these orders are made, the Court in their discretion must satisfy themselves that it is in the best interests of the child for a passport to be issued.
What options outside of Court do I have?
If you are unable to get the ‘not so co-operative’ other parent to sign off on a passport and are seeking to avoid the process of a Family Court application, there may be exceptions to the rule that apply to you.
You need to be able to demonstrate that there are ‘special circumstances’ which pertain to your case (see APA section 11(2)). These include:
- An inability to contact the non-consenting parent for a reasonable period of time;
- If there is a family violence order against the non-consenting parenting;
- The child is the subject of a welfare order (i.e. child protection);
- The child needs to travel urgently for a family crisis.
Unfortunately, there are no guarantees that an application will be approved. This may be due to the Minister rejecting the application for failure to meet the ‘special circumstances’ threshold, or via the Minister refusing to apply their discretion in favour of the matter being heard by a Court. A review of the Minister’s decision may be available in certain circumstances.
How can you Prevent the issuing of a passport for your child?
Consenting to your child’s passport and travel plans can be inherently risky where there is the conceivable threat of child abduction. Although not every situation will pose this danger, we at CD Lawyers understand that for some this threat may indeed be a terrifying reality.
A primary method of preventing this situation is through withholding consent in the other parent’s application for a children’s passport. However, should the risk that your child will be relocated or travel overseas persist, you should get urgent legal advice and contact one of our lawyers for an initial appointment and action plan. We can assist you in applying for relevant Court orders, including injunctions, recovery orders and location orders.
We understand the stress and time constraints that are often associated with these types of applications. With this in mind, CD Lawyers aims to both advise and make you fully aware of your rights, obligations and risks pursuant to children’s passports applications.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.