How do I obtain a Passport for my Child after Separation?

I’m Separated… Do I need to ask for Consent to travel overseas with my Child? And how do I obtain a Passport?

Many parents wish to travel with their child (or children). Travel is one of life’s greatest luxuries, however many parents do not realise the legal restrictions on taking their child overseas once they have separated from the child’s other parent. Two common questions we often receive as family law solicitors are “Do I need permission from my ex to take my child on a holiday overseas?” and “How do I obtain a passport for my child?”.

Do I need permission to travel?

The general rule is that a child should not be removed from Australia without the consent of both parents or a Court Order. If you try to take a child outside of Australia without either of these things, the child’s other parent could apply to the Federal Circuit and Family Court of Australia (“Court”) for a Recovery Order seeking that you return the child to Australia immediately.

Further, pursuant to sections 65Y and 65Z of the Family Law Act, the parent who intends to travel commits a criminal offence that carries a sentence of up to 3 years in prison, if the child is taken overseas unless:

The above two provisions apply to cases where parenting Orders have been made, or where Court proceedings have been commenced and parenting Orders are pending.

Can I stop my ex from taking my children overseas?

If you have concerns that the child’s other parent may remove your child from Australia and not return, there are a number of measures in place to prevent your child from leaving the country.

Option 1

One option is permitting travel only to countries that are signatory to the Hague Convention, which is an international treaty between over 90 countries (including Australia). Countries that are signatory to the Hague Convention have agreed to uphold parenting Orders from other signatory countries and force the return of children if they are taken or retained overseas without the other parent’s consent.

Option 2

Another option includes obtaining a Child Alert to prevent the issue of an Australian passport. A Child Alert requires the Department of Foreign Affairs and Trade to scrutinise any passport application received in relation to your child. However, it is important to note that this does not guarantee that the application will not be granted, and it does not stop a child from travelling overseas.

Option 3

A third option is to have your child placed on the Federal Police Family Law Watch List (known as the ‘Airport Watch List’). This would alert the Australian Federal Police if someone were to attempt to travel overseas with your child and they would not be allowed to leave Australia, however, there are limitations to this method.

To apply to have your child’s name added to the Airport Watch List, you need to have:

If your child’s name is on the Airport Watch List, you may still travel overseas with your child, however, you will need to provide notice of such travel to the Australian Federal Police.

How do I obtain a Passport?

To obtain an Australian passport for a child, the Australian Passport Office generally requires:

In the absence of the above-mentioned Order, and if the other parent will not sign the passport application, you may be able to make an application to the Australian Passport Office for a passport to be issued under ‘special circumstances’. For example, if there is a family violence order in place, there has been no contact with the other parent for an extended period time, or if the travel is urgent.

You may also be able to make an application to the Court seeking an Order for the other parent to sign the passport application, or an Order giving you the sole power to sign a passport application.

What happens if I go to Court?

If you make an application to the Court seeking either of the above-mentioned Orders, the Court will consider various factors, including but not limited to:

The Court may also request that you pay a sum of money, called a ‘travel bond’ as security that you will return the child to Australia. More often than not, if one party seeks to go on holiday and their ex-partner refuses to sign an application for the passport, communicating to such ex addressing the following, ensures that the application is signed: Confirmation of travel date/time.

What Court Orders should I seek?

It is important to seek legal advice in relation to the most appropriate Orders to seek to ensure that there are no issues in the future should you wish to travel overseas with your child or apply for a passport for your child. At Southern Waters Legal, our team of family law solicitors are experienced in dealing with overseas travel and passport issues and is here to offer you expert legal assistance.

If you are concerned that a parent may be planning to remove your child from Australia without your consent, you should contact us at (02) 9523 5523 as a matter of urgency, to make an immediate appointment with one of our experienced family law solicitors.