Freedman & Gopalan Solicitors

Travelling with your children after separation

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Whilst COVID-19 has halted the entire aviation industry for the time being, it may be worthwhile to now sort out any issues relating to your child’s Passport, so you’ll be ready to travel again when borders open!

It is important to consider your rights, obligations and steps to be undertaking as a parent obtaining a Passport for your child post-separation.

The Australian Passports Act 2005

The Australian Passports Act 2005 (‘the Act’) outlines the conditions upon which a child can be issued with a Passport, namely the consent of each person who has parental responsibility of the child must be obtained. Section 11(5) of the Act states: –

A person has parental responsibility for a child if, and only if:

  1. the person:
  2. is the child‘s parent (including a person who is presumed to be the child‘s parent because of a presumption; and
  3. has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 ; or
  4. the person:
  5. is the child‘s parent (including a person who is presumed to be the child‘s parent because of a presumption; and
  6. has not ceased to have parental responsibility for the child because of an order made under that Act; or
  7. under a parenting order:
  8. the child is to live with the person; or
  9. the person has parental responsibility for the child; or
  10. the person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a State or a Territory.

Your Consent

If you have concerns that the other parent may apply for a Passport without your consent, there a number of steps that you could take.

  1. You can place your child on the Airport Watchlist. Further details in relation to this can be found here.
  2. You could seek formal Court Orders to prevent your child from being issued with a Passport, how your child’s Passport will be handled (e.g. kept in safe custody at a solicitors office) or even completely preventing your child from travelling overseas.

The Other Party’s Consent

If the other parent with parental responsibility of your child does not consent to having a Passport issued, you may obtain a formal Court Order which dispenses the requirement of their consent for the Passport.

However, there are limited circumstances, such as: –

  1. A Family Violence Order has been made against the other party;
  2. There has been no contact with the other party for a substantial amount of time;
  3. There is an urgent need to travel with your child due to a family crisis;
  4. The other party is missing, presumed dead or medically incapable of giving consent;
  5. There is a Court Order giving parental responsibility to another person (other than the non-consenting other party); or,
  6. The child’s welfare would be adversely affected should international travel not be permitted.

If you would like to discuss any of the above issues, please do not hesitate to contact our team at Freedman & Gopalan Solicitors on 02 8917 8700, and we’ll be happy to assist you in any manner.