By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
As family lawyers we often encounter situations where one parent seeks to make significant decisions regarding their child without the consent of the other parent. This can include changing the child’s surname, obtaining a passport, or making other major decisions. It’s crucial for parents in these situations to understand their rights and obligations under Australian family law, as well as the potential avenues available to them.
Parental Responsibilities and Legal Requirements
In Australia, both parents typically share parental responsibility and decision-making for their children, regardless of whether they are separated or divorced. This means major long-term decisions about the child’s upbringing, such as education, health, and religious upbringing, should ideally be made jointly. However, certain decisions like changing a child’s surname or obtaining a passport require specific legal processes if both parents do not agree.
Changing a Child’s Surname
If a parent wishes to change their child’s surname without the other parent’s consent, they generally need to apply to the Federal Circuit and Family Court of Australia for an order allowing the change. The court will consider factors such as the child’s relationship with each parent, any practical issues resulting from the name change, and the child’s wishes (if they are old enough to express them). Usually, the parent that is applying to the court needs to establish that they have reasonably tried to mediate an outcome with the other parent before taking that next step of bringing the matter into the Court room.
Obtaining a Passport
When it comes to obtaining a passport for a child, both parents typically need to provide consent. If one parent cannot or will not provide consent, the other parent may apply to the court for an order permitting the child to obtain a passport without the other parent’s consent. This involves demonstrating to the court that it is in the best interests of the child to have a passport, considering factors such as travel plans and any potential risks. Just like with changing a surname, usually, the parent that is applying to the court needs to establish that they have reasonably tried to mediate and negotiate with the other parent.
Legal Options and Procedures
For parents facing these issues, there are several steps to consider:
- Negotiation and Mediation: It is often beneficial to attempt negotiation or mediation first, to see if an agreement can be reached without court intervention. Mediation services are available through Family Relationship Centres or private mediators accredited by the Attorney-General’s Department.
- Seeking Legal Advice: Consulting with a family lawyer is essential to understand your rights, obligations, and the legal processes involved. A lawyer can provide guidance on the likelihood of success in court, potential outcomes, and steps to take to protect your child’s best interests.
- Applying to the Court: If an agreement cannot be reached through negotiation or mediation, a parent may need to apply to the Federal Circuit and Family Court of Australia for orders regarding the specific issue. This involves filing an application outlining the reasons for the request and attending court hearings as required.
Considerations for Court Applications
When deciding whether to grant orders for unilateral decision-making, the court prioritises the best interests of the child above all else. Factors considered include the child’s relationship with each parent, their views (if mature enough to express them), and the practical implications of the decision.
Where to next?
Navigating parental consent issues can be complex and emotionally challenging for parents. By working with our experienced family lawyers at Conditsis Lawyers and booking in an initial consultation today, you can ensure you understand your rights and responsibilities.
