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When a couple with children gets a divorce, there are seemingly endless logistic concerns they need to consider. Living arrangements, custody concerns, childcare payments, schooling, education, and more. However, less common concerns can come up as well, including documentation such as passports. So, how do you go about obtaining a passport for your child after going through a divorce, specifically, when the other party does not consent?

The passport process

Generally speaking, there is a set formula one has to adhere to when applying for a child’s passport. In Australia, the application must usually have (1) each parent or guardian’s written consent, or (2) a court order from an Australian court that allows the child to have a passport, travel outside of the country, or live and spend time with someone outside of the country. However, in the absence of one parent or guardian, your next steps will be one of two options for obtaining a child’s passport under Australian law.

Option 1: Special Circumstances

If one parent or guardian refuses to provide their written consent for the child’s passport application after the divorce, you can make a formal request to the Department of Foreign Affairs and Trade (DFAT), asking that they consider approving the passport due to ‘special circumstances’. This request should be in writing and include: a copy of your passport approval request to the other parent or guardian, a certified copy of the child in question’s birth certificate, your travel itinerary and copies of your transportation tickets (if they are already purchased), and a certified copy of your court ordered parenting order. Once the request is made, the Approved Senior Officer of DFAT will determine whether exceptional circumstances exist to warrant the passport.

What will qualify as ‘Special Circumstances’?

What will qualify as ‘special circumstances’ is left to the Court’s discretion, however, some of the more common examples can be found below. Special Circumstances may include (but are not limited to):

  • When the non-consenting person cannot be reached either by the Minister reviewing the application or the filing parent or guardian.
  • When the non-consenting person is missing or presumed dead.
  • When the child has had no contact with the non-consenting person for a reasonable amount of time.
  • When there is a history of family violence and a family violence order was made against the non-consenting person, or if the child lives overseas and there’s evidence of family violence.
  • When there are child welfare orders.

Option 2: Initiating Application

If your request for special circumstances is denied, you will likely first be required to make an attempt at mediation prior to an application to the Court. In the event that mediation fails, you will then need to file an Initiating Application. This application will include an Affidavit in support of your Initiating Application that includes all of the facts that are relevant to support your case. You will also need to file a second affidavit (an Affidavit of Service) demonstrating that the other parent was served with the necessary documents. Your Initiating Application will request that the court make an order that permits only one parent or guardian to receive a passport for the child.