By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
As family lawyers, we often encounter situations where one parent wants to make significant decisions regarding their child without the other parent’s consent. These decisions might include changing the child’s surname, obtaining a passport, or other major choices. It’s essential for parents in these situations to understand their rights and obligations under Australian family law, as well as the available options.
Parental Responsibilities and Legal Requirements
In Australia, both parents generally share parental responsibility and decision-making for their children, regardless of separation or divorce. Major long-term decisions about the child’s upbringing, such as education, health, and religion, 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 typically need to apply to the Federal Circuit and Family Court of Australia for an order permitting 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). The parent applying to the court must usually demonstrate that they have reasonably tried to mediate an outcome with the other parent before resorting to legal action.
Obtaining a Passport
Obtaining a passport for a child usually requires the consent of both parents. If one parent cannot or will not provide consent, the other parent may apply to the court for an order allowing the child to obtain a passport without the other parent’s consent. This involves proving to the court that it is in the child’s best interests to have a passport, considering factors such as travel plans and any potential risks. Similar to changing a surname, the applying parent must show that they have made reasonable efforts to mediate and negotiate with the other parent.
Legal Options and Procedures
Parents facing these issues should consider the following steps:
- Negotiation and Mediation: Attempting negotiation or mediation first can be beneficial 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 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.
Moving Forward
Navigating parental consent issues can be complex and emotionally challenging for parents. By working with our experienced family lawyers at Conditsis Lawyers and scheduling an initial consultation, you can ensure you understand your rights and responsibilities.
For personalised advice and assistance on these matters, please contact our firm to book a consultation. We are committed to helping you navigate the complexities of family law with sensitivity and expertise.
