A must read article if you are taking your child overseas after a separation
Are you separated from your former spouse and planning an overseas trip with your child? Or are you the parent of a child whom your former spouse wishes to take on an overseas trip? If so, it may be beneficial to read the information below.
Applying for a passport
If you do not already have a passport for your child, you will understandably need to apply for one. In most cases, both parents will need to sign the passport application form. However, consent of both parents will not be required where the applicant alone has sole parental responsibility for the child.
It is assumed that both parents as named on the child’s birth certificate have parental responsibility for the child. Parental responsibility can only be ‘removed’ by Order of the Federal Circuit Court of Australia or Family Court of Australia.
Can a passport be issued if your ex objects?
If the non-travelling parent will not consent to the issue of a passport for the child, you can apply to have a passport issued under special circumstances. ‘Special circumstances’ can include:
- inability to contact a non-consenting parent for a reasonable period of time (this generally entails making attempts at contact through more than one medium, where the same is available, for example telephone, letter, email, via social media, family members/mutual acquaintances, etc);
- the existence of a family violence order against the non-consenting parent;
- the child being the subject of a child welfare order.
Even when considered under the special circumstances provisions, there is no guarantee that an application without full consent will be approved. The delegate assessing the application can decide to:
- issue a passport; or
- not issue a passport as special circumstances do not exist; or
- refuse to exercise their discretion because the matter should be dealt with by a court.
Applying to the Courts
Normal time frames for the processing of a special circumstances passport application do not apply. Accordingly, if there is urgency in your need to travel and the non-travelling parent will not consent to the issue of a passport, it may be more expedient to apply for a Court Order.
Unfortunately, the Court is not able to hear all matters at short notice or on an urgent basis, and an assessment will be made as to whether there is genuine urgency in having your Court application heard urgently. Your application will not be deemed urgent simply because you have already booked your travel and risk forfeiting the trip if a passport is not granted. Given the same, it is advisable that you do not book any travel until such time as you have obtained a passport for your child.
In deciding whether to allow your child a passport where one parent won’t consent, the Court may consider the following factors:-
- the length of the proposed trip;
- whether the holiday will interfere with the non-travelling parent’s time with the child and, if so, what proposals have been made for ‘make up time’;
- whether the planned holiday will interfere with the child’s other important commitments such as schooling;
- the reason for the proposed travel;
- the travelling parent’s and child’s ties to the child’s current home country/state, so as to be in a position to assess the risk of the travelling parent not returning with the child;
- the proposed location of the trip, including whether the country is a signatory to the Hague Convention on Child Abduction and whether the Australian Government has issued any travel warnings in respect of the proposed location of the trip.
After considering the foregoing factors (and any other factors the Court deems relevant), any of the following Orders may be made:-
- the parent objecting to the issue of a passport must sign the passport application (and if they so refuse, the Registrar of the Court may sign on their behalf);
- the child be issued a passport notwithstanding the lack of signature of one of the parents;
- the child not be issued a passport;
- the child may leave Australia and travel overseas, noting that this may include any of the following restrictions:-
- restrictions on location of travel (for example, an order may provide that the child cannot be taken to countries that are not parties to the Hague Convention and/or countries for which the Australian Government has issued a ‘do not travel’ warning);
- duration of travel;
- that appropriate notice of the proposed travel must be given to the non-travelling parent together with a travel itinerary, copy of return flight ticket and contact details for the child while travelling.
- an ‘airport stop’ order (PACE Alert) issue and the child’s name be placed on the Airport Watch List (in practice, this applies more broadly than just to air travel – and can be used to prevent a child leaving the country by sea, for example by cruise ship);
- that the child’s passport be held by the Court and/or returned to the Court when the child is not travelling.
If you have genuine fears that your former spouse may abscond overseas with your child
If your child does not have a passport already: do not consent to a passport being issued to your child. As the other parent may still apply for a passport under ‘special circumstances’ provisions, you may wish to also apply for a Child Alert.
A Child Alert is a warning to the Department of Foreign Affairs and Trade that there may be factors which should be considered before a passport is issued to a child. Note that it does not guarantee that a child will not be issued with a passport, and if a Child Alert is granted, it will only remain in place for 12 months. Accordingly, it is a good temporary measure which will allow you time to apply for a Court Order.
If your child has a passport which is not in your possession: you will need to make an urgent Application to the Federal Circuit Court of Australia, seeking Orders that:-
- your child not be permitted to travel internationally;
- the child’s passport be surrendered to the Court;
- the child be added to the Airport Watch List and an ‘airport stop order’ issue.
Once you file the Application, you can serve a copy on the Australian Federal Police, prior to your first Court attendance and Interim Orders being made. Your child will then be placed on the Watch List as an interim measure.
The Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’) is a multilateral treaty, which seeks to protect children from abduction and retention across international boundaries, by providing a procedure to bring about their prompt return to the country in which the child habitually resides.
The Hague Convention is in force between Australia and the countries listed below:
- Bosnia and Herzegovina
- Burkina Faso
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- Hong Kong (China)
- Macau (China)
- Moldova, Republic of
- New Zealand
- Republic of Korea (from 1 June 2015)
- Saint Kitts and Nevis
- San Marino
- South Africa
- Sri Lanka
- The Former Yugoslav Republic of Macedonia (FYROM)
- Trinidad and Tobago
- United Kingdom
- United States of America
Contact Lindbloms Lawyers early to obtain expert family law advice on your legal matter.