The recent enactment of the Passports Legislation Amendment (Integrity) Bill 2015 (Cth) has resulted in changes to both the Family Law Act 1975 (Cth) and the Australian Passports Act 2005 (Cth). These changes have helped to clarify who is required to consent to a child having an Australian travel document. Whilst obtaining consent for the issue of a passport has been simplified, it is important to note that consent for a child to travel overseas is treated differently.
Firstly, amended section 11 of the Passports Act now refers to consent only to the issue of a travel document and no longer includes any reference to consent to international travel, which is governed by the Family Law Act.
Importantly, the definition of parental responsibility has been aligned in both Acts and no longer includes persons who only have a court order to spend time with a child or have access to a child. Under the amendments, only persons with parental responsibility need to consent to the issue of the travel document. This includes parents who have not had their parental responsibility removed by a court, or any person who, under a court order has parental responsibility or with whom the child is to live, or a person who has guardianship, custody or parental responsibility under Australian Law.
Note that this approval is only for a travel document and the Family Law Act still requires a person travelling overseas with a child to obtain the consent of all persons in whose favour a court order is made in relation to the child, including those who have only only court awarded access to a child or orders providing for them to time to spend with the child.
Lastly, section 67ZD of the Family Law Act allows a person to apply to have the passport of the child and of any other person delivered to the court if there is a possibility or threat that the child may be removed from Australia. To receive such an order there must be specific evidence that shows a possibility or threat of removal.