Can I make an application for a passport for my child?

Withers & Russell [2016] FamCA793 was a case that centred on sole parental responsibility and the issues relevant to application for a passport and travel documents in these circumstances.

Although the father was given sole parental responsibility for the 3 children of the relationship an issue arose as to the children travelling overseas to visit with the mother.  The judge had intended by his orders that the father be exclusively responsible for making an application to obtain the children’s passports.  The question then arose as to whether the order for sole parental responsibility was sufficient to achieve this outcome.

The provisions of section 11 of the Australian Passports Act 2005 provide that the Minister must not issue an Australian travel document to a child:

  • unless each person who has parental responsibility for the child consents to the child having an Australian travel document, or
  • an order is made by a court of the Commonwealth or State permitting the child to have an Australian travel document, or
  • an order is made by a court of the Commonwealth or State permitting the child to travel internationally, or
  • an order is made by a court of the Commonwealth or State permitting the child to live or spend time with another person who is outside Australia.

The next question is then to determine who has parental responsibility and the definition in the Australian Passports Act 2005 is materially different to the definition in the Family Law Act.

For the Australian Passports Act 2005 a person has parental responsibility if it the child’s parent and has not ceased to have parental responsibility.  In effect an order that a child is to live with a person is an order granting parental responsibility.

In this case there was an order made that the children would live with the mother for some of the time and the judge concluded that the mother had parental responsibility and her consent to the issue of a passport was required notwithstanding the order made under the Family Law Act which gave the father sole parental responsibility for each of the children.

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