The Law and You: Children and passports – parental consent

Posted on 2 February, 2018

If you want to get an Australian passport for your child, you can apply to the Australian Passports Office for one if you have parental responsibility for the child and if you have the consent of all other persons who have parental responsibility for the child.

What if you can’t get consent? Can you apply for the issue of a passport anyway? This column explores the issues.

I want to travel overseas with my child, but my partner won’t consent. What do I do?

You can apply to the Family Law Courts for an order for the issue of an Australian passport and for permission for your child to travel overseas.

Applications for passport orders are Parenting Orders under the Family Law Act (1975) and are dealt with by a Judge in Court.

You need to, however, satisfy the Court of certain matters.

What matters will the Court consider?

The Court needs to be satisfied that it’s in the best interests of the child for a passport to be issued. In deciding, the Judge will consider, for example:

• Where and why is the overseas travel proposed?
• For how long?
• Has the other parent or persons with parental responsibility for the child unreasonably withheld their consent?
• Is the travel proposed to a safe country or a country that is a party to Australia’s international treaties for the return of children? (If the country is not, you can still apply but the onus of proof would be higher as you may need to satisfy the Court about other issues such as safety concerns and guaranteed return of the child to Australia.)

What countries are party to international treaties for the return of children?

View the whole list here.

Can I ask the Minister for Foreign Affairs and Trade to issue an Australian passport through the Passports Office if I can’t get that consent?

You can make an application but must satisfy the Minister that certain special circumstances exist and the decision about whether to issue one is at the Minister’s discretion.

Examples include:

• When your child must travel overseas because of an urgent family crisis and there is no way of contacting the other parent/person who needs to provide the consent.
• If you’ve been unable to contact the other parent/persons with parental responsibility for an unreasonably long period of time.

Even though you can apply, the outcome is by no means certain. It’s always better if you can work with the other parent to obtain consent. This may involve you contacting a family lawyer for support and advice on the best way forward. For more information see passports.gov.au.

This column was prepared by Debra Parker, Watts McCray Lawyers Canberra. If you have any questions about children and passports, call Watts McCray to speak to one of our experienced family law lawyers.

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