BUT I PROMISED DISNEYLAND, WHAT NOW?
So you have promised the kids a trip to Disneyland at the end of the year. “Do your homework, complete your chores and I promise we will go”, you say. There is one hiccup, the children’s other parent isn’t interested in signing passport applications or that parent is MIA.
How are you going to keep your promise?
LET’S START WITH THE MINISTER
The starting point for perspective travelling parents will be the Passport Office and the provisions of the Australian Passport Act 2005.
Save in certain circumstances, the Minister must not issue a passport for a child unless all persons with parental responsibility for the child has given their consent in writing for the passport to issue or there is an Order permitting the child to travel overseas.
The Passport Act recognises that there will be certain circumstances where you may not be able to get that consent.
The Minister can, however, issue a passport in circumstances were;
- special circumstances exist; or
- the Minister is satisfied that the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally;
- the Minister is satisfied that:
- the child urgently needs to travel internationally because of a family crisis; and
- there is a person who has parental responsibility for the child and whose consent to the child travelling internationally has not been given–it is not possible to contact that person within a reasonable period; or
- in the case of a child who is outside Australia–the child departed Australia less than 12 months before the application for the passport was made and the Minister considers that a passport should be issued to enable the child’s return to Australia.
Special circumstances may include;
- where the other parent has died or is presumed dead;
- where there is a serious history of family violence and to give notice of the application to the other parent may put the child or children and parent at risk;
- where there has been no, or limited, contact with the other parent for an extended period of time;
- where there are State legislated child welfare Orders in place; or
- the other parent is medically incapable of giving consent
If one of the above is relevant in your case then a Form B9 can be completed via the passport office website (www.passports.gov.au). In ordinary circumstances, you should not need the assistance of a lawyer in drafting this document.
Your application for special consideration should detail;
- The history of the relationship with the other parent;
- How long it has been since you have had contact with the other parent;
- Where appropriate, why contact has ceased;
- Where appropriate, what steps you have taken to bring the application to their attention. For example, have you sent a copy of the application to their last known address, attempted to telephone or email without a response;
- If there is a history of Domestic Violence detail that history and your concern for your safety in the event that the application is brought to the other parent’s attention.
You should know that the Minister’s Office will make its own enquiries about the information you have provided and will make an assessment about what steps the Minister’s office will take to contact the other parent, if it is deemed appropriate or necessary.
WHEN WILL I NEED TO MAKE AN APPLICATION TO COURT?
An application to the Minister (via the Passport office), rather than to Court should be made in all situations except where;
- The other parent is objecting to the issue of a passport;
- There are court orders restraining the child’s travel, such as an airport watch-list order;
- There is another good reason why the administrative process would not provide an appropriate remedy; or
- The administrative process has resulted in a refusal to issue a passport.
Let’s say you have sent the passport application to the other parent and you receive an email or text from them advising that they will not sign the passport application or they will only sign it if you meet certain demands. You can take that as a refusal to sign and therefore an objection to the issuing of the passport. The Minister will refuse to deal with the application and will advise that an application to Court will be necessary.
Distinguish this from the situation were you have had no contact from the other parent for some time and have sent him or her the documents to their last known address without a response. He or she has not objected to the issuing of the passport and therefore you should make an application to the Minister for consideration and not the Court at first instance.
The assistance of a lawyer will greatly assist in putting your application for Court together. The other parent will (save in very limited circumstances) need to be served with your Court documents and will be given the opportunity to reply. If service cannot be affected, then an application for substituted service or to dispense with service will need to be made.
There will be at least one Court date for the Court to consider your application. You should bear in mind that there can be lengthy delays in being allocated a Court hearing date. If you have a holiday date in mind, you should be consulting your lawyer about the possible need to apply to the Court, ideally six months prior to the intended travel.
A WORD OF CAUTION
Sections 65Y and 65Z of the Family Law Act 1975 make it an offence to remove a child from the Commonwealth of Australia when there are current Orders in place or proceedings on foot without the consent of the other parent or leave of the Court.
That means that if an application for parenting orders is currently before the Court OR you have parenting orders in place, you must not remove the child from the jurisdiction (ie Australia) without the consent of the parent or the Court. The penalty can be severe, including imprisonment.
Even if the passport is issued by the Minister under his or her discretion under the Passport Act, if you have Orders in place, you MUST make an application to Court for permission to travel if the other parent or person with parental responsibility does not agree and you do not have an order permitting travel.
If you are making an application to the Court for a passport to issue, then you may also seek permission to travel at the same time.
It is important that you obtain legal advice before you embark on that trip to Disneyland if there is any uncertainity!
