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I am hoping someone can help me and point me in the right direction.

I have found out that my ex is planning on moving to USA with my 12 year old son because her current live-in is from there and wanting to return.

My ex did a good job on my son and other child (now 19) in alienating them against me.  I went through mediation about 12 months ago and the mother played the game but when it came to enforcing temporary parenting orders drawn up at mediation she refused.  The lawyer I had at that time was beyond useless (to the point where he was fired from the law firm he was with midway through my case).  At that time my son started telling me he didn't want to see me or spend time with me.  I backed off in the hope that things would cool down, but this didn't happen.  I have kept an eye on my son through FB and relatives over the last 12 months but have not given up hope that we can resume a relationship again.

I do not want my son moving overseas and herein lies the problem.  I do not have any court orders in place.  What do I need to do to stop this happening and can I stop it happening.  I have sent a form off to the Passport Office stating that I do not give permission for a passport to be issued for my son, but if this has already happened (without my signature) it takes the problem to another level.

My questions are:
  • even though I have not had contact with my son for 12 months do I still have the right to stop my ex taking him overseas?
  • Does she need a court order stating she has permission to take him or can she just take him without a court order?
  • Can she get a passport without my signature?
  • From the research I have done I understand I need court orders from the Federal court - which form do I use and can I self-represent to get an order in place to stop the removal.  I can not afford a lawyer at the moment as I am self employed and things are beyond tight financially.  But maintenance is up to date and always has been.
  • Is there anything else I need to do?
allegin12 said
even though I have not had contact with my son for 12 months do I still have the right to stop my ex taking him overseas?
I don't think that you have the right. However, the child has a right to be stopped by the state and it is the state's responsibility to stop the child being abducted.

allegin12 said
Does she need a court order stating she has permission to take him or can she just take him without a court order?
No, all that is needed is the passport and that the child hasn't been placed on the airport watch list (the latter being the instrument the state uses).

allegin12 said
Can she get a passport without my signature?
Yes, but not without difficulty or by an illegal deception. The website www.passports.gov.au has the following page (here's the link Children and Parental Consent:

Note that unless court orders specify otherwise both parents have parental responsibility. If the other parent has obtained a passport the it could well have been fraudulently and also possibly with the intention of committing the crime of abducting the child. I think that if this has happened it should be a matter for the Federal Police. The other parent could apply to court, where the other parent may or may not have orders made that allow for a passport to be obtained and for the relocation of the child. At 12 the child could have a say in the matter. However, I doubt that this would be a matter that happens quickly as the court is likely to want to ensure that it makes the right decision.

Passports - Parental Consent said
Children and Parental Consent

There are laws governing the issue of passports to children.

These laws are designed to protect children from abduction and to safeguard the rights of all people with parental responsibility for children.

This page outlines the requirement for the consent of people with parental responsibility when applying for a childs passport.
Who needs to give consent?

It is a requirement of the Australian Passports Act 2005 that before a passport may be issued to a child (anyone under 18 years who has never married) the written consent of all people with parental responsibility for the child is needed.

Where persons with parental responsibility are in separate locations, the non-lodging person may provide consent through their closest passport office or Australian diplomatic or consular post.

In most cases people with parental responsibility are the natural parents named on the child's full birth certificate; their parental responsibility can only be removed by an Australian court.

Where a father is not named on a child's birth certificate but has formally acknowledged paternity by signing a document to this effect, he has parental responsibility for the purposes of the Australian Passports Act 2005 and is required to provide consent prior to issue of a passport.

As well as the natural parents, a person may have parental responsibility through Australian court orders covering residence, contact, access rights, guardianship, custody, or other specific issues relating to the child.

Institutions, such as a government welfare agency, may also have parental responsibility under an Australian court order.
What happens if you cannot get consent?

If the consent of anyone with parental responsibility for the child cannot be obtained after all avenues have been exhausted, and there is no court order permitting the child to travel internationally, a written request for 'special circumstances' under section 11(2) of the Australian Passports Act 2005 may be made. An Approved Senior Officer, an officer delegated by the Minister for Foreign Affairs, will consider the statement in support of the request to determine if a passport may be issued without the other person's consent.

In such cases, the passport application must be accompanied by:

    a statement made on Form B8 or B9 in which you state why the necessary consent has not and cannot be obtained, and explain the special circumstances relevant to the application, and
    the child's full birth certificate, and
    the originals of all court orders affecting parental responsibility for the child.

Foreign court orders

Decisions under the Australian Passports Act 2005 are not subject to foreign court orders affecting parental rights and responsibilities unless registered under the Australian Family Law Act 1975. However, foreign court orders, particularly from countries which are party to the Hague Convention on the Civil Aspects of International Child Abduction, should be submitted with the application as supporting documentation of the circumstances. They may be taken into account by the Approved Senior Officer when reaching a decision.
Processing times

The normal processing times and an option to select priority processing are only available where full parental consent is confirmed at time of lodgement.

Where a child's application is lodged without the consent of a person with parental responsibility, an additional three to four weeks is generally required to determine whether special circumstances exist. This time is needed for passport officers to make inquiries, which may include writing to the other person to advise them that an application has been lodged and seek their consent. If you are able to obtain the other person's consent yourself in the meantime, a passport will be issued within the normal time frame.

Note: It is advisable not to make firm travel plans or pay for tickets until you know whether passport approval has been given.
Approved Senior Officer's role

When an application without consent based on special circumstances is lodged, it will be considered by an Approved Senior Officer having regard to the Australian Passports Act 2005 and the Australian Passports Determination 2005. The Approved Senior Officer will assess the application to determine if a passport may be issued without the consent of all parties with parental responsibility. If people with parental responsibility disagree about the child travelling overseas, the Approved Senior Officer may declare that the matter should be referred to a court for decision.

If an Approved Senior Officer decides that a passport should be issued on the basis of special circumstances but new information becomes available, in particular from another person with parental responsibility, the Approved Senior Officer will consider cancelling the passport.
Outcome

There is no guarantee that an application to the Approved Senior Officer will result in a passport being issued to the child. It may still be necessary to obtain a court order permitting the child to travel internationally.

A passport cannot be issued to a child against the wishes of a person who has parental responsibility for that child unless:

    the circumstances set out in section 11 of the Australian Passports Act 2005 have been met; or
    special circumstances are established; or
    an Australian court order permits the child to travel internationally.

The Australian Passports Act 2005 and the Australian Passports Determination 2005 are available from this website.
Who can witness the consent?

The witness must not be related to the child by birth or marriage or be in a de facto relationship with either of the child's parents, nor live at the same address. The person giving consent must sign the consent in the presence of the witness. A different person may witness the signature of each person giving consent.

The guarantor of the child may witness the consent but must not be related in any way to the child applicant.
Information about parental orders and responsibility

Advice about court orders affecting parental responsibility can be obtained from the Family Court website.
Step-parents and consent

A step-parent's consent to the issue of a passport to a child is not required unless:

    the child has been adopted by the step-parent;
    the step-parent has a court order giving them parental responsibility or
    some other form of legal relationship exists.

Wards of the State

The relevant Child Welfare Department and all persons having a parental responsibility for the child need to give consent.
Adopted children

There is no reason why a child would find out that he or she has been adopted when applying for a passport. The birth certificate will show details of the child's adoptive parents, not the child's natural parents.

For more information see brochure Children and parental consent (html) (Download PDF 977 KB)

allegin12 said
From the research I have done I understand I need court orders from the Federal court - which form do I use and can I self-represent to get an order in place to stop the removal.  I can not afford a lawyer at the moment as I am self employed and things are beyond tight financially.  But maintenance is up to date and always has been.

I'm not sure what form you need, hopefully somebody more conversant with Family Law will say which form. I suspect that initially such a matter could be handled by a magistrate and thus if you contact your local Federal Magistrates Court registrar they should be able to assist with what form or forms should be submitted.

www.familylawcourts.gov.au has the following page (here's the link www.FamilyLawCourts - Relocation and Travel
Relocation and travel said
Relocation and travel
Moving away

Moving with the children to another town, state or country is known as relocation. If moving is going to limit the time the children live with or spend with a parent or another significant person in their lives, a court may not give permission.
What if you need to move?

If your children primarily live with you and you need to relocate, you should first try to talk to the other party. You may be able to reach agreement that the children have longer periods of time in school holidays with their other parent and/or longer visits during the year. Your former partner may be able to move to where you are hoping to relocate.

If you reach agreement with the other party, it is best to enter into a written parenting plan (between parents only) or apply for consent orders before you move.

If you move without a court order or without the consent of the other party, a court may require you to return until it has considered the case. If there is a court order in place, you will be breaking the order and the other parent can apply to enforce the current order.

Note: A parenting plan is a written agreement that sets out parenting arrangements for children. Because it is worked out and agreed jointly, you and your former partner do not need to go to court. Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan. A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court.  You should obtain legal advice about the effect of a parenting plan in these circumstances.

A consent order is a written agreement that is approved by a court. A consent order can cover parenting arrangements for children (parenting orders) as well as financial arrangements* such as property and spousal maintenance (*for married couples who are separated or divorced). Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing.

What if you can't agree about relocation?

If you cannot agree, you can apply to a court for a relocation order to allow you to move. The Court may not grant permission. As with all matters about the care and welfare of children, the Court must consider the best interests of the child.

What if the other party wants to take the children to another place?

If the other party wants to take the children away and you do not agree, you can apply for an order to stop the relocation of the children.

How do you apply for an order to relocate or to prevent relocation?

You can apply to a court for such orders. View the information in this section titled 'If you can't agree'.

Can children travel overseas?

Every time a parent wishes to take the children overseas for a holiday or permanently, the permission of the other parent must be obtained. Before an Australian passport can be issued for a child, the law requires the written consent of each person who has parental responsibility for a child. This is usually the childs parents but may include grandparents or other relatives.

If you are planning a holiday, you should advise the other parent (and any other person with parental responsibility) of your intention as soon as possible. You should include full details of where you will go, confirm a full itinerary will be provided and include contact numbers for hotels or relatives.

If written consent is provided by all parties with parental responsibility, applications can be lodged at an authorised Australia Post office or any Australian Passport Office.

If written consent is not provided by all parties with parental responsibility, you can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to special circumstances. For more information about requests to consider special circumstances contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au

If your request to consider special circumstances is not successful, you can apply to the Court for an order permitting a child to travel internationally. In considering such applications, the Court will only permit a child to travel internationally if it determines it is in the best interests of the child.

How can I prevent a child from leaving Australia?

If you are concerned that a child may leave Australia without your permission, you should seek legal advice as soon as possible.

You can apply to the Court for an order that:

    prevents a passport being issued for a child
    requires a person to deliver a childs or accompanying adults passport to the Court, or
    prevents a child from leaving Australia.

(a) Preventing a childs passport being issued

If you want to prevent an Australian passport being issued for a child, you can:

    lodge a Child Alert Request at any Australian Passport Office, or
    apply to the Court for a child alert order.

A Child Alert Request warns the Department of Foreign Affairs and Trade that a person may apply for an Australian passport for a child without proper and legal consent. If a child alert is in force and an application for an Australian passport is received for a child, you will be notified by the Department of Foreign Affairs and Trade.   

A child alert request made at an Australian Passport Office is valid for 12 months. A court ordered child alert stays in force until a child turns 18, or as directed by the Court.

Note: A child alert does not stop a child departing Australia on a valid Australian or foreign passport, and does not cover passports issued by other countries. If you think a passport may be issued for a child in another country, contact the embassy of that country.

For more information about child alerts, contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.

(b) Delivery of a passport to the Court

If there is a possibility or threat that a child may be removed from Australia on a current passport, you can apply to the Court for orders. The Court may order the delivery of a childs or accompanying adults passport to the Court. If ordered, the person in possession of the childs passport must deliver it to the Court. The Court will keep it for the specific amount of time detailed in the court order or until further order of the Court.

© Preventing a child from leaving Australia

If there is a possibility or threat that a child may be removed from Australia, the Court can make orders which:

    restrain the removal of the child from Australia
    request that the Australian Federal Police (AFP) place the childs name on the Airport Watch List, and
    request that the AFP assist in the implementation of the order/s.


The AFP will need a copy of the court order before placing a childs name on the list. The childs name will stay on the Airport Watch List until further order of the Court.

Note: If you consent to a child travelling out of Australia in the future or wish to take a child out of Australia yourself, you must apply to the Court (before you travel) to have the childs name removed from the Airport Watch List. If you fail to do so, a child may be prevented from leaving irrespective of who they are travelling with. The AFP cannot remove the childs name from the list without an order of the Court.

The AFP has offices in each capital city and some regional locations. Go to www.afp.gov.au or look in the White Pages for contact details.

What if the Court is not open when I need to make an urgent application?

The Court has an out-of-hours service for emergencies: that is, there is a risk that a child may be taken out of the country before the next working day. Call the Courts on 1300 352 000 out of business hours and you will be referred to this emergency number.

allegin12 said
Is there anything else I need to do?
Quite possibly, however, I can't think of anything at present. Also note that I'm not as conversant with Family Law as others such as 4mydaughter and Fairgo. I'd suggest you should read all replies and form a balanced decision.
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