In order to have a child's passport issued, the written consent of both parents is required when making an application to the Department of Foreign Affairs and Trade. Where parties are divorced or separated, this can be a difficult hurdle to overcome, especially where parents are not on good terms or where a parent is living overseas.

To lodge an application for a passport at the Department of Foreign Affairs and Trade, it is required that both parents sign the passport application as both have parental responsibility for the child, regardless of being divorced. Parental responsibility is an ongoing obligation each parent has to their child until the child reaches the age of 18 years. The responsibility of parent to child can only be removed by way of a court order. Where consent is an issue in obtaining a child's passport, the following options are available:

1. Make an application to the Department of Foreign Affairs and Trade pursuant to the Australian Passport Act 2005 ("the Act")

The Department of Foreign affairs may, where special circumstances exist, issue a passport without the consent of both parents. There are several forms which must be completed with this type of application, which also requires an explanation as to why consent cannot otherwise be obtained. Under the Australian Passport Determination 2015 (Cth) act, special circumstances can include:

• Inability to contact the non-consenting parent for a reasonable period of time;

• The non-consenting party is medically incapable of providing consent; and

• The child needs to travel urgently.

Even with consideration for special circumstances, there is no guarantee that an application will be successful. If a request to consider special circumstances is unsuccessful, a parent may apply for a court order which permits a passport application without both parents' consent.

2. Apply to the Court for an order permitting a child to hold a passport

If you have been unsuccessful in obtaining the other parent's consent, and your circumstances do not qualify you to bring an application through the Department of Foreign Affairs and Trade, the only way to guarantee the issue of a passport to a child is with a court order. The court order will allow the child to hold an Australian passport and travel internationally.

As with most cases involving children, the Family Law Act 1975 (Cth) will require you to attempt mediation before making an application to the court. If mediation is unsuccessful, the process of obtaining a court order is commenced by filing an initiating application wherein you request permission for the court to issue a passport for the child. An affidavit in support will be required in order to support the application.

The affidavit then has to be served on the other parent with a further affidavit of service required to be filed to prove the other parent was served. In deciding whether to make a parenting order, the court will have regard to the best interest of the child as the paramount consideration.

The best interest of the child

In the matter of Friswell & Knowles [2016] FCCA 976, the father proposed to take the child out of the country for a holiday. The child's passport was however due to expire at a time during the proposed holiday, meaning the father needed to apply for a new passport. The mother did not consent to the issue of a new passport for the child which caused some difficulty for the father.

In considering the matter, the court found that it would be in the child's best interest to travel overseas with his father to spend time with his stepmother's extended family, also noting that travel would be beneficial to the child. Further, the Court noted that there was no risk in the father traveling overseas with the child and not returning the child to Australia.

The Court made an order permitting the father to remove the child out of Australia for the purpose of travelling overseas, as well as an order permitting the father to apply for a passport without the mother's consent.

When a parent is unsuccessful in getting hold of the other parent to inform them of the need for an application for a child's passport

In the matter of Olivera & Magarelli [2011] FMCAfam 815, an application was brought before the court wherein the mother sought orders allowing her to apply for a passport for the children without the father's consent. The mother was unaware of the father's whereabouts as he had moved interstate. The application was made on an urgent basis as one of the children was offered a position in a school holiday sporting program overseas.

The mother gave evidence that the last time the children saw their father was in 2003, until he notified her sometime later that he was moving interstate. The mother made several attempts to telephone the father to advise him about the child's trip away and the fact that a passport was needed. Numerous voice messages, text messages and other means were also unsuccessful to obtain the father's consent.

The court concluded that the mother had made all reasonable attempts to contact the father and she exhausted all her options to do so. The court further held that it would be in the child's best interest to attend the overseas trip to participate in sporting events. Orders were made allowing passports to be issued to both children without the consent of the father being obtained.

You are welcome to call us on (08) 9200 1833 to make an appointment to see one of our lawyers if you require advice or assistance in applying for a child's passport in the event that you are unable to obtain the other party's consent.