Who Holds Authority to Apply for a Child’s Passport?

The default rule is that both parents with parental responsibility must sign the application. Parental responsibility is defined in Family Law Act s 61B,and the Court must regard the child’s best interests as the paramount consideration when that responsibility is exercised (s 60CA). Even if a parenting plan or order grants one parent “sole parental responsibility”, the Passport Office will still require the full Court order to confirm that the other parent’s signature is not needed.

When Parents Disagree: Resolving Passport Disputes

If one parent will not provide consent, the other parent can:

• Negotiate – often the Court expects genuine attempts at family dispute resolution (s 60I).
• Apply to the Federal Circuit and Family Court of Australia for a specific-issue order under Family Law Act s 65D; the Court can authorise or compel a parent to sign, or direct that the passport issue proceed without that signature.
• Seek an injunction under s 68B restraining the withholding parent from obstructing the application.

The Court balances factors in s 60CC, including the benefit of time with each parent, the child’s safety, and practical considerations such as schooling, health and the purpose of travel. Evidence of firm travel plans (or their absence) and any risk of non-return will be critical.

Preventing Unauthorised International Travel

Parents sometimes discover plans for a sudden overseas trip and fear the child may not return. The Court can make:

• Orders for delivery of travel documents – Family Law Act s 67ZD allows the Court to order a person to hand over a child’s passport to the Court, Federal Police or the other parent.
• Injunctions restraining departure – s 68B lets the Court prevent a parent (or anyone else) removing the child from Australia.
• Watch-list orders – based on s 90SS & s 67X definitions, the Court can direct the Australian Federal Police to place the child’s name on the Airport Watch-List so a passport cannot be used at any border point.

These orders can be made on an urgent ex-parte basis if delay may expose the child to harm or removal.

Obligations Once Proceedings Are Under Way

Ifparenting proceedings are pending, parents must comply with the statutorytravel restraints in ss 65Y and 65Z:

• No taking or sending a child out of Australia without either the written consent of every person in whose favour a parenting order is sought, or an order of the Court.
• Breach is a criminal offence punishable by up to three years’ imprisonment.

Even after final orders, similar restraints often appear in the parenting orders themselves. Ignoring them risks contravention applications, contempt proceedings, fines or imprisonment under Part XIII.

Urgent and Airport Watch-List Orders

In true emergencies the Court can sit after hours and grant an order over the telephone. The Registry then faxes the order directly to the AFP so the child’s name is immediately entered onto the Watch-List. The parent seeking protection will usually be required to issue formal court documents at the first business opportunity. Remember that Watch-List orders do not last forever; you must return to court before the nominated expiry date if the risk remains.

Passports After Separation or Divorce

Where one parent has moved interstate or overseas, practical problems arise about thesafe custody of the passport. A common solution is an order that the passpor tbe kept

• at the Federal Circuit and Family Court Registry; or
• in a secure location within Australia agreed in writing; or
• by the travelling parent, but only for the duration of the authorised trip.

If a parent refuses to return the document when ordered, the Court may involve the Australian Federal Police (s 90SS) or appoint the other parent as a “litigation guardian” to execute documents on the child’s behalf.

Adult Passports and Name Changes After Marriage

Adults do not ordinarily need spousal consent to renew or replace their passport, but recently-married clients often wish to change the name shown. Section 45 of the Marriage Act 1961 (Cth) requires the production of an official marriage certificate; the Passport Office will not accept the celebrant’s ceremonial certificate. Where domestic violence exists, a victim may apply for a passport in their maiden name without the abuser’s knowledge – specialist advice is essential.

Common Myths Dispelled

• “I’m the mother, so DFAT  will issue the passport to me.” – Incorrect. DFAT must still see the other parent’s consent or a Court order.
• “Once the Watch-List order is made the case is over.” – Wrong. You must pursue substantive parenting orders; interim travel restraints are a stop-gap.
• “If I hold the passport I automatically control travel.” – False. Unauthorised retention can breach s 67ZD and expose you to penalty.

How Stanley & Co Lawyers Can Help

Passport disputes move quickly. An incorrect form, a missing affidavit or apoorly-drafted order can ruin holiday plans – or fail to protect a child at genuine risk of abduction. As specialist family-law solicitors we:

• Advise on parental responsibility  and whether consent is needed;
• Draft watertight court documents citing the precise sections relevant to your case (such as Family Law Act ss 60CC, 65D, 67ZD, 68B and 90SS);
• Appear urgently for Watch-List, recovery and travel-document orders;
• Negotiate practical parenting arrangements that balance travel opportunities with security; and
• Coordinate with the Australian Federal Police and Department of Foreign Affairs to ensure orders are executed immediately.