Obtaining A Child’s Passport During A Parenting Dispute

05Sep
2016

Obtaining A Child’s Passport During A Parenting Dispute

What Can I Do If My Partner Will Not Agree to the Child Obtaining A Passport

The Court is often inundated with applications from parents seeking to have passports issued, to enable them to travel with their children overseas. This typically occurs during the school holiday period.

Although the idea of a holiday does not seem unreasonable, there are occasions where an ex-partner will not consent to the issuing of a passport. At times. the refusal to provide consent is based on a legitimate concern however; there are instances where the denial is unwarranted.

Where parents are exercising equal shared parental responsibility for their children, both parents are expected to consult with one another about any future travel plans and both must seek each other’s consent and complete the relevant forms to facilitate the issuing of a passport for the child or children. In the absence of obtaining consent, the effected parent must attain an Australian Court Order to allow a child to travel globally.

Exemptions To Issuing A Passport to A Child

Nonetheless, people are usually unaware of the exemptions to the primary requirements for the issuing of a passport to a child. Such exemptions are detailed in the Australian Passports Act 2005 (the Passports Act) and are deemed as “special circumstances”. Examples of special circumstances include:

1. The non-consenting party is unable to be located. In such situations, the Passport Office will rely on their databases to trace the whereabouts of the other parent. If they are able to successfully find an address for the parent, written correspondence is sent to the objecting parent directly, informing them of the proposed application and seeking their consent to the issuing of the child or children’s passport. Subsequently, the Passport Office will request a response within a period of 10 working days. If a response is not received within that timeframe, the appropriate delegate in the Passport Office will exercise their discretion to decide whether or not to issue the child’s passport;
2. The non-consenting party has not had any contact with the child over a reasonable period of time. What is deemed to be a reasonable period of time is based on the discretion of the representative making the decision nevertheless, the policy’s guiding principles provide that, for a child who is less than 3 years of age, the reasonable period to time would be since the child’s birth; whilst for a child aged 3 years or more, but less than 16 years of age, he practical period of time would be at 3 years; and
3. A family violence order (also referred to as an Apprehended Violence Order (AVO)) has been made pursuant to a prescribed law of a State or Territory. The AVO may be an interim or final order and in some cases, even if an AVO has expired, the Passport Office will need to assess each case on its own merits and investigate the circumstances and conditions in which the AVO was granted, prior to making a final determination as to the issuing of a child’s passport.

Special Circumstances

It is important to note that the special circumstances outlined above do not apply where the Passports Office has been presented with court documents confirming that there are parenting proceedings currently listed before the court, which may impinge on the rights of a person in relation to the child. Further, the exemptions do not apply where final court orders are already in place, preventing a child from leaving the jurisdiction. In these instances, the Passport Office cannot issue a child’s Passport. A further Order will need to be obtained from the Court to enable the Passport Office to enforce its powers to issue the Child’s Passport in the future.

If it is your intention to take your children for holidays and you envisage that you will have problems obtaining the other parent’s consent, it is advisable that you engage a solicitor to assist you in the negotiation process. In the event that discussions do not result in a positive outcome, proceedings will need to be commenced to seek judicial intervention and formal orders from the court regarding the issue. Our legal team at Sage Solicitors would be pleased to assist you with this process. Please contact Charly Tannous or Luisa-Maria Maroun for further advice or to make an appointment.