Decision making
The law does not tell you how to care for your child after separation. You and your ex-partner are both responsible for deciding the parenting arrangements for your child, including:
- where your child lives
- where your child goes to school
- what medical treatment your child receives.
You both have the responsibility to make decisions about any major issues or events regarding your child, unless a court has ordered otherwise. This is known as parental responsibility. You share this responsibility regardless of what type of relationship you were in, if at all. You can exercise this responsibility jointly or separately.
If it is safe, you should consult with each other about these issues and make decisions that are in the best interests of your child. If you reach an agreement, you should put your agreement into writing.
For more information, see Parenting agreements.
Parental responsibility does not cover the day-to-day decisions about the care of your child, such as what your child wears and eats. The parent who is caring your child has the responsibility for making these decisions. You don’t have to consult with each other about these issues, however, you can if it will help you to carry out your parenting arrangements.
Sharing parental responsibility doesn’t necessarily mean you will spend equal time with your child, unless you agree to this or a court orders it.
Birth certificates
Parents must register their baby within 60 days of their birth. The hospital does not do this for you.
You can do this:
- online, or
- in writing, by completing a Birth Registration Statement.
You will need to provide a copy of a notification provided by the hospital, a doctor or registered Midwife or by independent witnesses who saw the birth occur.
You can’t register your baby’s birth online if you gave birth at home without a doctor or midwife present, and you didn’t go to the hospital or seek medical attention within 24 hours after the birth.
You can lodge your completed form:
- via a drop box at your nearest NSW Registry of Births, Deaths and Marriages
- in person at your nearest Service NSW service centre
- by post.
To lodge your form by post, it should be addressed to:
Registry of Births, Deaths and Marriages
GPO Box 30
SYDNEY NSW 2001
Counter services at NSW Registry of Births, Deaths and Marriages are no longer available.
You don’t need to pay a fee to register your baby’s birth. However, if you want a birth certificate, you may have to pay a fee unless you are granted a fee wavier.
For more information, see Register a birth on the Service NSW website.
Father refusing to sign birth registration statement
If your child's father won’t sign the birth registration statement to register the birth you should still lodge your application within 60 days.
If he is not listed as the father, this may affect your ability to claim child support.
If he is disputing that he is the father of your child, you can ask him to agree to parentage testing. Parentage testing is also known as DNA testing. If he agrees to parentage testing, you will need to use one of the laboratories accredited by the National Association of Testing Authorities Australia (NATA). You will have to reach a private agreement about the cost of testing.
He doesn’t have to agree to parentage testing unless there is a court order requiring him to submit to testing.
If he refuses, and you want to have him added to the birth certificate, you should get legal advice about applying for court orders for parentage testing to be carried out. The court will only make an order for parentage testing if they are considering another issue, for example, an application for parenting orders or a child support declaration.
For more information, see Child support.
Removing the other parent
A birth certificate is a factual record of your child's birth. You can't remove your ex-partners name because they don’t spend time with the child or pay child support. The only time a parent’s name may be removed from a birth certificate is when:
- the child is adopted
- there is a Court order to remove their name, or
- there is evidence, such as a parentage test, proving that your ex-partner is not the father of your child and was incorrectly registered as a parent.
Changing your child’s name
By agreement
You and your ex-partner can change your child’s name if you both agree.
You can do this:
- online, or
- in writing.
To apply in writing, you need to complete an Application to register a change of name for a child (under 18).
To lodge your form by post, it should be addressed to:
Registry of Births, Deaths and Marriages
GPO Box 30
SYDNEY NSW 2001
You need to return all of the original birth and change of name certificates for your child issued by the NSW Registry of Births, Deaths and Marriages with your application.
You need to pay a fee to when you lodge your completed form.
For more information, see Register a change of name (child) on the Service NSW website.
Without an agreement
You can change your child’s name without the agreement of your ex-partner if:
- you are the only parent listed on your child’s birth certificate
- you have an order for sole parental responsibility or sole decision making responsibility
- you have a court order specifically approving your child’s change of name
- your ex-partner has died.
If you need your ex-partner’s agreement to change your child’s name, which they are refusing to provide, you must follow the usual process for resolving parenting disputes by following with the pre-action procedures. In limited circumstances, you may be exempt from following the pre-action procedures.
For more information, see Family law mediation.
If you reach an agreement at mediation, you should put it in writing.
For more information, see Parenting agreements.
If you have followed the pre-action procedures and are still unable to reach an agreement, you can apply for parenting orders, including change of name orders.
For more information, see Changing your child’s name by court order.
Travel and passports
Travelling within Australia
You can travel in NSW and interstate with your child, unless there is a court order that restricts your child travelling with you. If you have parenting orders that deal with interstate travel, you must comply with the orders.
Before you start paying for your trip, it is important that you discuss your travel plans with the other parent and try to reach an agreement. You should provide them with details of where you will be staying and how you can be contacted.
Overseas travel
You can travel overseas with your child if:
- there are no parenting orders preventing you from travelling overseas with your child, and
- your child has a valid passport issued in their name.
If you want to take your child on an overseas holiday, you should try and reach an agreement with the other parent as soon as possible and before you start paying for your trip. You should provide them with details of where you will be staying and how you can be contacted throughout the trip. It is a good idea to seek the other parent's written permission, witnessed by a Justice of the Peace or lawyer, to travel overseas with your child.
If you can't reach an agreement with the other parent, you should try to resolve your dispute at mediation. In limited circumstances, you may be exempt from attending mediation and complying with the pre-action procedures.
For more information, see Family law mediation.
If you reach an agreement at mediation, you should put it in writing.
For more information, see Parenting agreements.
If mediation is unsuccessful, you will be given a section 60I certificate which will allow you to apply to the court for a travel and passport orders. Don’t book a holiday overseas until your dispute is resolved.
If you have, or have applied for, parenting orders, it's an offence to take your child overseas, unless the orders permit you to do so, or the other parent agrees in writing.
Passports
You and the other parent can agree, you can apply for a passport for your child.
For more information, see How to get a child passport on the Department of Foreign Affairs and Trade website.
If you can’t agree, you may make a written request to the approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing a passport due to special circumstances. You will need to explain why you can’t obtain permission from the other parent.
For more information, see Incomplete consent on the Department of Foreign Affairs and Trade website.
If your request is unsuccessful, you can apply to the court for an order for a passport for your child together with an order to travel with your child. Before you apply for court orders, you must comply with the pre-action procedures, unless an exception applies in your situation.
For more information, see the fact sheet Children and international travel after family separation on the Federal Circuit and Family Court of Australia website.
Don’t book a holiday overseas unless your child has a valid passport and there are no orders preventing you from travelling overseas with your child.
For more information, see our factsheet Travelling with my child overseas.
Foreign Passports
Your child may be eligible for a passport from another country if they have dual citizenship or nationality. The consent of only one parent is required in some countries. If a foreign passport was issued without your permission, you should contact the relevant embassy.
If you are concerned that your child is going to be taken overseas without your consent, you can apply to the court to have your child's name placed on the Family Law Watch List. You may be exempt from complying with the pre-action procedures if your matter is urgent.
These types of orders can be made very quickly if there is an immediate risk that a child will be removed from Australia. The Federal Circuit and Family Court of Australia has a service for emergencies outside of business hours. You can call your nearest registry and get details about this emergency service.
If the court makes a Family Watch List order, you must email or fax a copy of the sealed order together with a completed Family Law Watch List Request form to the Australian Federal Police to ensure that the child's name is placed on the Family Law Watch List.
For further information about Recovery Orders and child abduction, see Family Law Watchlist on the Australian Federal Police website.
Before you apply for a Family Watch List order, you should get legal advice
Moving house
Moving house with your child is also known as relocation.
You are free to move a short distance with your child if this won’t impact the time your child lives or spends with the other parent, unless a court order says otherwise. If you have parenting orders that require you to provide the other parent with your updated address, you need to follow this order.
You may need to discuss moving with the other parent, even if you are only moving a short distance, if it would have consequences, for example, for your child’s schooling. You may need to negotiate a new parenting arrangement with the other parent if it would be impractical to continue following your existing agreement. If you have parenting orders regarding your child’s schooling, you must follow these orders.
You will need to speak with the other parent if the distance you want to move will impact the time your child lives or spends with the other parent, and you don’t have any parenting orders permitting you to move. Parents are expected to consult with one another and negotiate an agreement about all major issues regarding your child’s care, including where your child will live. You should do this before you make plans to move.
If you can't reach an agreement with the other parent, you should try to resolve your dispute at mediation. In limited circumstances, you may be exempt from attending mediation and complying with the pre-action procedures.
For more information, see Family law mediation.
If you reach an agreement at mediation, you should put it in writing.
For more information, see Parenting agreements.
If mediation is unsuccessful, you will be given a section 60I certificate which will allow you to apply to the court for a relocation order. When deciding whether to make the order, the Court will look at what is in the best interests of your child.
Moving without an agreement
If you move without an agreement, the other parent may apply for relocation orders that would require:
- you to immediately return your child to the area you were living in, or
- your child to go live with the other parent.
If the other parent has relocated with your child without speaking to you, you may be able to apply to the Court for:
- a relocation order, or
- a recovery order - an order requiring your child to be returned to you.
For more information, see Children: Relocation, travel and the Hague Convention on the Federal Circuit and Family Court of Australia website.
Who will look after my child if I die?
In your will, you can name the person who you want your child to live with after you die. This is called appointing a testamentary guardian. This is usually done if the other parent has already died.
Before you appoint a guardian in your will, it is important that you discuss your wishes with the person you wish to appoint and your family. It is important that your nominated guardian knows of your wishes and agrees to act as guardian for your child because the appointment is not legally binding, and they can refuse to act as guardian if they don’t want to take on that responsibility. This may also help to avoid disagreements between your family members over who will care for your child if you are no longer able to.
A testamentary guardianship will end when your child turns 18 or the guardian is removed by a court.
Appointing a testamentary guardian does not give them parental responsibility for your child. Only parents have parental responsibility for the care, welfare and development of their child, as well as anyone who has parental responsibility under a court order. This responsibility can only be given or removed by a court order. If the other parent is still alive, they will continue to have parental responsibility for your child after you die, unless this is removed by a court.
After you die, if there is a dispute about who will have responsibility for your child, the surviving parent, testamentary guardian, or another person interested in the care, welfare and development of your child may apply to the court for parenting orders. The court may take into account your wishes when deciding what orders to make. However, the court can appoint someone else to be your child’s guardian if it is in your child’s best interests.
The court can also remove a guardian for the welfare of your child and appoint a new guardian in their place.
If you are concerned about who will care for your child after you die, you should get legal advice.
Share with
Facebook
Twitter
LinkedIn