Who should have our children’s passports when we separate?
When parents cannot agree who holds the child’s passport or where there is a legitimate risk one parent might take a child out of the country without the other’s consent or knowledge, it may be appropriate to appoint a third party to keep a child’s passport when the child is not travelling.
I recall when I separated, feeling anxious about my kids travelling internationally with their dad, or sometimes even unaccompanied. My fears were not of abduction but the lesser concerns of Dad forgetting the sunscreen, or the kids getting lost or sick without me to care for them.
The kids did travel, and they both survived all of the above.
I was relatively fortunate in that as much as the trust had broken down in our relationship, I knew their dad would always bring them home safely, but I understand that’s not the case for some separated parents.
If you are unsure who should have your children’s passports when you separate, here are the options available to you.
WHO SHOULD HAVE OUR CHILDREN’S PASSPORTS WHEN WE SEPARATE?
HANDING THE PASSPORT UP TO THE FAMILY COURT
Robert Pearson, Family Lawyer with Lynn and Brown Lawyers, advised that pursuant to section 67ZD of the Family Law Act 1975 (Cth), the Family Court may order a child’s passport be handed up to the Family Court for safekeeping, and he says:
“It is not unusual for the Family Court to hold a child’s passport during ongoing proceedings where there are legitimate concerns about a child being removed from Australia against the wishes of one of the parties”.
Some parents agree for the child’s passport to be held by a third party even where there are no Family Court proceedings in progress, or if Family Court proceedings have finished.
However, Mr Pearson added: “
The Family Court would, in our view, be unlikely to make an order providing for a child’s passport to be held at the Family Court on a permanent or long-term basis.”
ARE THERE ALTERNATIVES TO THE FAMILY COURT HOLDING THE CHILD’S PASSPORT?
You may want a third party to hold your children’s passports when you separate but would prefer not to give them to the Family Court.
In this case, solicitors may agree to receive a child’s passport on behalf of their client (for their client to then collect from the solicitors shortly thereafter), but solicitors would not usually hold a child’s passport on an ongoing basis.
As an alternative to the Family Court, a solicitor, or another neutral person who could hold the passports. Mr Pearson suggested:
“A workable option might be to place the passport in a safe deposit box with a bank requiring the joint signature of the parents for the removal of the passport.”
DO ARRANGEMENTS FOR HOLDING THE PASSPORT NEED TO BE BY ORDER OF THE COURT?
While the Family Court can make specific orders about travelling with a child and the management of a child’s passport, there is nothing preventing parents from reaching their own agreement to have a child’s passport held by a third party.
When negotiating Consent Orders for parenting on behalf of clients, where there was a concern that one of the parents may remove the child from Australia without the consent of the other parent, Mr Pearson said:
“My firm would generally advise that arrangements regarding the child’s passport be set out in the orders.”
Mediation can be an excellent way for parents to work through how they will manage travel arrangements before seeking the assistance of a family lawyer to formalise their agreements as Consent Orders.
SHOULD WE GET A THIRD PERSON TO HOLD OUR CHILDREN’S PASSPORTS? (CONT.)
WHO DECIDES WHEN THE CHILD’S PASSPORT CAN BE RELEASED, AND HOW?
When the parents reach their own agreement who will hold their children’s passports, the criteria for release might take many different forms and may change periodically to suit their altered circumstances.
If the Family Court is holding the child’s passport, it will do so for the time specified in the orders, or until another order is made.
If a parent wishes to travel overseas with the child, and the child’s passport is held by the Family Court, it’s usually necessary to file an application with a supporting affidavit seeking an order for the release of the passport to travel outside of Australia with the child.
The following is not an exhaustive list but it outlines some of the information that should potentially be included in an application:
- why the travel is in the child’s best interests;
- the details and purpose of the proposed trip, including a copy of the itinerary (if you have one);
- what links the people travelling have to Australia (ie family ties, business interests);
- whether the destination country is a member of the Hague Convention or if any there are any current travel warnings issued;
- the immigration status of the people travelling;
- whether you are willing to provide an undertaking to the Court to pay any damages which the Court may decide another party has suffered as a result of the order requested;
- whether you are willing and able to provide a monetary sum as security; and
- any other factors relevant to the case.
OTHER STEPS AVAILABLE TO PREVENT INTERNATIONAL TRAVEL
When the child doesn’t have a passport, it would ordinarily require both parents to sign the application. So, you could just refuse to sign the form. There are certain avenues available when one parent won’t sign the passport application, but it is a long and arduous process.
If you feel there’s a risk your ex may fraudulently lodge an application for the issue of a child’s passport, you could complete a Child Alert Request (PC9) at a passport office or call 131 232 to warn DFAT, and you will be notified if an application is received.
The surest way to prevent your child leaving the country is to have your child’s name placed on the Family Law Watch List by the Australian Federal Police which can prevent a child from leaving Australia from any border control point even if they have a valid passport.
If you are considering making orders about the arrangements for holding and release of a child’s passport, you should seek expert legal advice.