I am a single mother of a five-year old. I was in an on-off relationship with the child's father until i found myself pregnant. I have had no communication with the father and have no idea of his whereabouts (he is a foreign national) since having found I was pregnant he tried to pressure me into having an abortion and made verbal threats to my well-being. I am self-sufficient and receive no child support or centrelink payments (nor do I want any). However I have been asked about custody arrangements (when applying for travel visas, etc). Do I need to go to family court and what documents do I need if I don't have details of the father?
Hi Self-sufficient Mum
Thank you for your passport question.
I take it from your question that there are no orders in place. This is very important. If there are orders made under the Family Law Act concerning children, then it is absolutely essential to have a lawyer check the orders first before considering travel overseas. This is because to remove a child from Australia when there are orders concerning that child without first obtaining an order under the Family Law Act or the consent of the other party (usually the other parent) in a particular very defined written manner that must comply with the Family Law Act, is an offence for which a parent could be jailed.
There is also an argument that if a parent removes a child from Australia in breach of the Family Law Act order, then they may also be committing an offence under State law such as a child kidnapping offence.
So the first issue is to assume that there is no order in place. If there is an order, you need to take it to an experienced good family lawyer, preferably an accredited specialist so that they can just check the order and be sure that you will not be committing an offence.
The other thing not to do is to make an application for a passport and state that the father is unknown. If you do this, then you commit an offence for which you could be jailed. One of my clients discovered this many years ago. She came to me after she had attempted to holiday with her children in New Zealand and filled out a false declaration under the Passports Act stating that the father was unknown. The father had an inkling that something was wrong and managed to prevent her and the children from leaving the airport. My client then engaged me after she had been charged with the offence under the Passports Act. She later pleaded guilty and was fined. Not surprisingly, the father used that experience including the criminal conviction against her when the family law matter came on for trial a long time later.
Because this is a parenting matter you will need to make contact with a family dispute resolution practitioner, such as a family relationships centre. This is because you need a certificate from one of those practitioners under section 60I of the Family Law Act. A certificate can issue from the practitioner to say that you were unable to attend family dispute resolution (mediation), because the other party was not able to be contacted.
You will then need to make an application to the Family Court or the Federal Magistrates Court for a passport to issue for your child dispensing with the father’s consent. The tricky thing, as you have worked out, is that that application needs to be served on the father. You will need as part of that application to also ask the court to dispense with service because you will need to give evidence in an affidavit as to all the attempts you have made to locate the father and despite your best efforts he has not been able to be located. Sometimes the court requires an advertisement to be placed in a paper such as the Australian.
I strongly urge you to engage a lawyer. I do not anticipate that the cost would be particularly big in getting that through court, but there would be costs. Good luck!
Stephen Page is a partner of Harrington Family Lawyers, one of Brisbane’s oldest boutique family law firms.
Admitted in 1987, Stephen has been an accredited family law specialist since 1996. A co-founder of a domestic violence service, Stephen has been a member since 1999 of a committee for a court based domestic violence service and since 2008 a board member of a charity linking business with the domestic violence sector read more...