Stephen Page for SingleMum.com.au | 1 September 2011
It would be a serious mistake to think that you could have a passport issued for your child without the father's consent when the father has not been named on the birth certificate.
It may be an even bigger mistake to remove the child from Australia.
It is essential when considering one of these steps to get good legal advice first.
The child may be entitled to other citizenship than Australian. I will focus on just obtaining an Australian passport. Section 11 of the Australian Passports Act 2005 (1) advises:
"The Minister [in effect the Passports Office] must not issue an Australian passport to a child unless:
(a) Each person who has parental responsibility for the child consents to the child travelling internationally; or
(b) An order of the court of the Commonwealth, State or Territory permits the child to travel internationally."
A reference to a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child. Furthermore, an order of the court permitting the child to travel internationally includes a reference to an order permitting the issue of an Australian passport to the child or contact outside Australia between the child and someone else.
Under s.5 a person has parental responsibility if and only if:
(a) The person is the child's parent (including someone who is presumed to be the child's parent) (other than a man that the mother cohabited with between 20 and 44 weeks prior to giving birth) who is presumed to be the child's parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act.
The presumptions under the Family Law Act include if the man signed a document acknowledging that he is the father of the child, then he will be presumed to be the father of the child. In certain circumstances if the mother were in a lesbian relationship then her former lesbian partner may also be presumed to be a parent of the child.
In other words, if there is no order in place about changing parental responsibility, or for the issue of a passport or allowing the child to leave Australia, then the written consent of the other parent will be required before a passport can be obtained.
There are exceptions allowing a passport to issue:
The Passports Office can refuse to issue a passport in one of those special circumstances because in the opinion of the Minister the matter should be dealt with by a court.
Although the Passports Act makes it plain that removal of parental responsibility means that the other parent's consent is not required for the purposes of a passport application, that is not always how it plays out with the Passports Office. It is usually better to have a specific order specifying how a passport can issue in cases where it is anticipated that there will be difficulties with the other parent.
Most orders made under the Family Law Act concerning children specify a sharing of parental responsibility - in which case the other parent's consent is required.
If the Passport Officer is of the view that special circumstances don't apply, then it is a case of applying to the Family Court or the Federal Magistrates Court for an order dispensing with the other parent's consent. The application will have to be served on the other parent (unless they can't be found). It would normally be brought with an application for travel (except in a family crisis). Again, anyone contemplating making such an application to the court should get good legal advice before they go anywhere near the court. The court will be rightly suspicious of attempts to abduct children and the court must be reassured of positive steps, such as lodging a bond if required, to show that there is not any risk of that.
If an order has been made, however it is called, such as a contact order, that allows any time between the other parent and the child, then taking the child overseas without having the particular written consent of the other parent, or a court order, is a criminal offence with a maximum term of imprisonment of 3 years.
Child stealing is also a criminal offence. For example, in Queensland the maximum penalty is 7 years imprisonment.
To prevent children from being removed from Australia improperly, the Australian Federal Police maintain what is called a "PACE alert" or otherwise also called the "watchlist system". This prevents children being removed through the airport.
There are technical rules about how children can be placed on the watch list, but once placed it can be very hard to remove them from Australia. If children are already on the watchlist, there may need to be an order to remove them from the watchlist or to allow them to be removed so that they can go on their overseas holiday.
The consent of the other parent must, by Regulation 13 of the Family Law Regulations 1984, be authenticated by a person who can witness a Commonwealth statutory declaration, such as a legal practitioner or a pharmacist. That person must endorse on the consent a statement that that person is satisfied about the identity of the person signing the consent and that the consent was signed in that person's presence.
These rules are very technical and need to be followed to the letter. It is essential, again, that proper legal advice is obtained first before contemplating obtaining a passport or seeking to remove a child from Australia, even for a brief overseas holiday.
Stephen Page is a partner of Harrington Family Lawyers, one of Brisbane's oldest boutique family law firms, and is also a member of the SingleMum.com.au Expert Opinion Panel. 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 of Stephen Page's Profile here