If you are planning on travelling overseas on a holidays with your children, you need to discuss this with the other parent (or anyone who has parental responsibility of the child). You should notify the other person as soon as you possibly can as this will usually lead to the best result.
What is parental responsibility?
Parental responsibility comes about in 2 different ways.
- The common law responsibility that arises from being the birth parent of a child.
- The statutory parental responsibility that can be allocated by the Family Court under the Family Law Act 1975. This is granted through a court order.
In general, each parent of a child has parental responsibility of that child from birth until the child is 18 years old. Separation, divorce and remarriage do not affect this. The common law allows parents to act unilaterally or jointly in making decisions for the child. This includes authorising a passport for the child and taking the child overseas.
However, if there are court orders pertaining to parental responsibility, new obligations arise. When there is an order which requires shared parental responsibility, all those with parental responsibility will need to authorise any travel documents and will need to be aware of any planned overseas travel.
Getting a passport for your child.
If you plan on taking your child overseas, they will require a passport.
In order to attain a passport, you need written consent from all parties with parental responsibility. If you can’t get written consent form all the required parties, you can make a written request to the Approved Senior Office of the Department of Foreign Affairs and Trade, asking them to consider granting a passport due to ‘special circumstances’.
Family Law Act 1975
Section 65Y and 65Z of the Family Law Act 1975 prohibit the removal of a child from Australia without the consent of each involved party. As each parenting order differs, there are different requirements in regard to the consent necessary to take a child overseas. Some parenting orders may require this consent to be written.
What if the other parent is planning to take your child overseas?
If you consent to your children going on an overseas trip with their other parent, there should be no issues. However, if you do not consent to this and the other parent maintains that they are going to take the children overseas without your permission, you can apply to the court for orders.
There are 3 different types of court orders which can be made in this situation.
- An order to prevent a passport from being issued for a child by lodging a Child Alert Request or a child alert order.
- An order requiring a person to deliver a child’s or accompanying adult’s passport to the court. Without a passport, the child cannot leave the country. This order requires the person who has the child’s passport to surrender it to the Court.
- An order preventing child from leaving Australia. This order can restrain the removal of a child from Australia and put the child’s name on the Australian Federal Police’s Airport Watch List.
In order to apply for one of the above court orders, you should make an application to the Federal Circuit Court of Australia.
You should also bear in mind that none of the above court orders prevent a person from applying for a passport for your child if they maintain citizenship in another country. Each country has their own requirements for applying for a passport. If your child already holds a foreign passport, the Australian courts cannot remove this passport. You will need to make an application with the relevant embassy or country.
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