Steps needed to secure passports and travel overseas with children of separated parents

Overseas travel with children is often a contentious issue among separated parents and is a common application in the Family Courts.

An application for a child’s passport must be made to the Minister responsible for Citizenship, under section 11 of the Australian Passports Act 2005. The application requires the signatures of both parents, except in circumstances where parental responsibility has been removed by way of a court order. The problem emerges when one parent refuses to sign the application.

Parents may withhold their consent for their child to travel overseas for a variety of reasons including fear that the other parent may not return the child to Australia, fear for the child’s welfare and safety in a particular country, among other factors.

Generally, in circumstances where one parent wishes to travel overseas with their child and the other parent either refuses to sign the passport application, refuses to release the passport or generally withholds consent for travel, it is necessary to make an application to the Federal Circuit Court to have the matter determined by a judge.

The parent wishing to travel with the child must set out the following factors in their evidence to the Court:

• The length of the holiday/trip
• The reason for the trip
• The effect on the child (if any) of separation from the other parent while away
• Any risk to the welfare of the child in the proposed destination
• The proposed itinerary
• The factors supporting that parent’s promise to return home (to the jurisdiction)
• Evidence that the parent has first sought the consent of the other parent and that they have refused
• Whether or not the destination country is a signatory to the Hague Convention.

The Court will determine the application in line with what they believe is in the best interest of the child.

In some cases there is contention about who gets to hold the child’s passport when it is not in use. It is possible to seek an order that the child’s passport is held by the Court and released to the party wishing to travel with the child under set conditions in the parenting orders.

If you would like further advice or information, please contact the Family Law experts at Streeterlaw on 1300 293 593 or email advice@streeterlaw.com.au.