PASSPORT - Australian citizens refused a passport - where Applicants are children -consent for children to be issued with a passport refused by the father - where parents are separated - where no court orders in relation to parental responsibility for children - whether exceptions apply for issue of passport to child without parental consent or court order - whether substantial period of no contact between children and non-consenting parent - whether evidence of family violence - whether discretion should be exercised - decision under review affirmed

Australian Passports Act 2005 (Cth)

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

HGPV and Minister for Foreign Affairs [2023] AATA 339

LFRS and Minister for Foreign Affairs [2021] AATA 79

TYRQ and Minister for Foreign Affairs [2024] AATA 316

Explanatory Statement to the Australian Passports Determination 2015 (Cth)

1. NTBN and HCKY (the Applicants) are children (aged 9 and 7) whose Mother applied for a passport for them on 6 May 2024. That application was refused by a decision made by a delegate of the Minister for Foreign Affairs and was affirmed on internal review. The delegate considered:

No evidence has been provided to rebut the presumption that both the mother and father have parental responsibility for the children, such as a court order removing parental responsibility. > > There is no dispute that [Mr P] has parental responsibility for the children. > > I am satisfied that the children's parents have parental responsibility for the children under section 11(5) of the Passports Act. > > When the father was contacted by the department for the purposes of the original passport application and in this review, the father did not consent to the children being issued a passport. > > No court orders have been provided that permits the children to have an Australian travel document, travel internationally, or live or spend time with another person who is outside Australia. > > When the father was contacted for the purpose of the original application, he stated that the last contact he had with the children was 30 January 2024. > > Having regard to departmental policy that contact includes all forms of contact such as phone, email, social media and not just face-to face contact, I am satisfied there has been contact between the father and the children. > > On balance, I consider that the last contact between the father and the children was less than two years ago. Given the children's age and the circumstances of the applications as set out above, I am unable to be satisfied that there has been no contact between the children and the father for a substantial period before the applications were made. > > The mother has provided a copy of a family violence order issued against the non-consenting person on 26 September 2023 which permits contact between the father and the children. Further, there has been contact between the father and the children since the date the family violence order was issued.

2. The Applicants' Mother has applied for review to the Tribunal pursuant to section 50 of the Australian Passports Act 2005 (Cth) (the Passports Act), as she believed the Australian Passport Office had failed to consider all the evidence, particular in respect of family violence issues. Further she contended the children's Father had no valid reason to refuse the children being granted a passport.
3. The Father of the children has been joined as the Other Party. He opposes the application for a passport.

1. The object of the Passports Act is to provide for the issue and administration of Australian passports. Every Australian citizen is entitled, subject to Division 2 of the Passports Act, to be issued with an Australian passport.
2. Section 11 is within Division 2 of the Passports Act and provides:

Reasons relating to child without parental consent or court order for travel > > (1) The Minister must not issue an Australian travel document to a child unless: > > (a) each person who has parental responsibility for the child consents to the child having an Australian travel document; or > > (b) an order of a court of the Commonwealth, a State or a Territory permits: > > (i) the child to have an Australian travel document; or > > (ii) the child to travel internationally; or > > (iii) the child to live or spend time with another person who is outside Australia. > > (2) Subsection (1) does not prevent the Minister from issuing an Australian travel document to a child if: > > (a) circumstances specified in a Minister's determination as special circumstances exist; or > > (b) the Minister is satisfied that the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally; or > > (c) the Minister is satisfied that: > > (i) the child urgently needs to travel internationally because of a family crisis; and > > (ii) if there is a person who has parental responsibility for the child and who has not consented to the child having an Australian travel document - it is not possible to contact that person within a reasonable period; or > > (d) in the case of a child who is outside Australia - the child departed Australia less than 12 months before the application for the Australian travel document was made and the Minister considers that an Australian travel document should be issued to enable the child's return to Australia. > > (3) If the Minister refuses to issue an Australian travel document to a child, the Minister may declare that he or she is refusing to exercise the discretion under subsection (2) because the matter should be dealt with by a court. > > (5) For the purposes of this section, a person has parental responsibility for a child if, and only if: > > (a) the person: > > (i) is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and > > (ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or > > (aa) the person: > > (i) is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 189) in Subdivision 3 of Division 11 of Part 5 of the Family Court Act 1997 (WA)); and > > (ii) has not ceased to have parental responsibility for the child because of an order made under that Act; or > > (b) under a parenting order: > > (i) the child is to live with the person; or > > (ii) the person has parental responsibility for the child; or > > (d) the person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a State or a Territory. > > Note: The presumptions in the Family Law Act 1975 and the Family Court Act 1997 (WA) include a presumption arising from a court finding that a person is the child's parent, and a presumption arising from a man executing an instrument under law acknowledging that he is the father of the child.

3. Section 10 of the Australian Passports Determination 2015 (Cth) (the Determination) provides the special circumstances in which a passport may be issued:

Special circumstances in which the Minister may issue an Australian travel document to a child > > (1) For paragraph 11(2)(a) of the Act, each of the circumstances mentioned in subsection (3) is a special circumstance in which the Minister may issue an Australian travel document to a child even though a person who has parental responsibility for the child (the non-consenting person) has not consented to the child having an Australian travel document. > > Note: Parental responsibility has the meaning given by subsection 11(5) of the Act. > > (2) Subsection (1) does not apply if the Minister has been provided with court documents demonstrating that there are proceedings before a Commonwealth, State or Territory court that may affect: > > (aa) the issue of an Australian travel document to the child; or > > (a) the rights of the child to travel internationally; or > > (b) who has parental responsibility for the child. > > (3) The circumstances are the following: > > (a) the Minister has not been able to contact the non-consenting person for a reasonable period; > > (b) the non-consenting person is either or both of the following: > > (i) missing; > > (ii) presumed dead; > > (c) the non-consenting person is medically incapable of providing consent; > > (d) there has been no contact between the child and the non-consenting person for a substantial period before the application is made; > > (e) the non-consenting person: > > (i) is not an Australian citizen; and > > (ii) is separated from a person who has parental responsibility for the child and has consented to the child having an Australian travel document; and > > (iii) has not had contact with the child since the child arrived in Australia; > > (f) a family violence order has been issued against the non-consenting person; > > (g) if the child is outside Australia - there is evidence of family violence; > > (h) an order of a court in a convention country (within the meaning of the Family Law (Child Abduction Convention) Regulations 1986) permits any of the following: > > (i) the issue of a travel document to the child; > > (ii) the child to travel internationally; > > (iii) contact between the child and another person outside the country where the order was made; > > (i) if the child is outside Australia - the Minister considers that there is a need for the child to travel internationally or the child requires a travel document to continue to legally reside overseas; > > (j) an order of a State or Territory court, made under a child welfare law, grants parental responsibility or guardianship of the child to: > > (i) a parent of the child other than the non-consenting person; or > > (ii) a person other than a parent of the child.

4. The Explanatory Memorandum relating to s 11 of the Passports Act says:

[24] The objects of the provisions relating to issuing passports to children are to protect a child from abduction and to protect the rights of parents. Clause 11 will set out the range of additional requirements which must be met before a child is issued an Australian passport. The requirements for the issue of an Australian passport to all citizens will continue to apply, in particular, entitlement to a passport (new section 7).

1. Given there is no dispute that the Mother and Mr P (the Other Party) are the parents of the Applicants or that there are no court orders in place that deal with custody arrangements of the Applicants; the issues for the Tribunal to consider are whether:

(a) there has been no contact between the Applicants and the Other Party for a substantial period before the application for the passports was made; or > > (b) a family violence order has been issued against the other party under relevant Australian law; or > > (c) the Applicants' welfare (physical or psychological) would be adversely affected if they were not able to travel internationally; and > > (d) if the answer to issue (a) or (b) or (c) is yes, should the discretion to issue a passport be exercised in the Applicants' favour?

1. The Respondent's representative contended that the Tribunal should not exercise discretion to grant the Applicants passports as it would be contrary to the fundamental objectives of the provisions in the Act relating to the issuance of passports to children, including protecting a child from international abduction and to safeguard the rights of persons with parental responsibility.
2. The Respondent's representative submitted based on the following that the children did not meet the criteria for discretion to be exercised to be granted a passport.

The first issue: Whether each person who has parental responsibility for the children consents to the children having an Australian travel document - s 11(1)(a) of the Act

Mr P has confirmed to the Tribunal that he does not consent to the Applicants having Australian passports and so the Applicants cannot meet s 11(1)(a) of the Act.

The second issue: Whether an order of a court of the Commonwealth, a State or a Territory permits the children to have an Australian travel document; travel internationally; or live or spend time with another person who is outside Australia - s 11(1)(b) of the Act.

There were no relevant court orders that permitted the children to travel overseas requiring a passport.

The third issue: whether any of the circumstances in section 11(2) apply, such that it can be determined that special circumstances exist. Relevantly here:

(a) Where there has been no contact between the children and the non-consenting person for a substantial period, paragraph 10(3)(d) of the Determination allows a passport to be issued to a child without the consent of each person with parental responsibility.

What constitutes a 'substantial period' is the time period stipulated in the Explanatory Statement being up to two years, submitting the circumstances of this case do not compel the Tribunal to conclude otherwise.

'Substantial period' is not defined in the Act or Determination, but the Tribunal may find guidance in Paragraph 49 of the Explanatory Statement to the Determination which states that "in most cases, a substantial period during which there has been no contact is considered to be up to two years but may be less depending on the age of the child and the circumstances of the application." Noting this Tribunal has previously accepted that the time period as outlined in the Explanatory Statement should be accepted (LFRS and Minister for Foreign Affairs [2021] AATA 79 at [60], see also TYRQ and Minister for Foreign Affairs [2024] AATA 316 at [32] and HGPV and Minister for Foreign Affairs [2023] AATA 339 at [121]).

The evidence before the Tribunal indicated the Mother confirmed the last contact the children had with their Father was Christmas Day 2023; whilst the children's Father asserted, he had contact in January and April 2024, texts to the children in July 2025 and received a Father's Day card from the children in September 2025.

Submitting in this regard, the word "contact" in section 10(3)(d) should be interpreted broadly, with policy and case law providing that contact includes all forms of contact, including telecommunications "and any other avenue of communication", and unreciprocated contact.

Submitting the policy also provides that where the non-consenting person contests the date of last contact, it is open to the decision-maker to refuse the application as special circumstance have not been met. The Tribunal as a decision-maker will generally apply departmental policy guidance unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640. Submitting that there was no good reason in this case to depart from the Minister's policy.

The evidence did not support a finding that a substantial period (two years) of no contact between the Father and the children had elapsed to enliven this consideration. Simply put, the Father has had contact with the children before and since the passport's application of 6 May 2024.

(b) If a family violence order has been issued against the non-consenting parent under relevant Australian law. Paragraph 10(3)(f) of the Determination provides grounds to issue a passport to a child without the consent of all people with parental responsibility.

Submitting that the existence of an order in itself does not automatically result in the issuing of a passport.

The Father contended there were no family violence orders in place.

The Mother contended an IVO was first made in January 2020 and that on 2 May 2025 the Father agreed to an undertaking with identical no-contact criteria.

There was no evidence of a current family violence order being in place, the previous IVO has since ceased and the undertaking is not a court order, as explicitly noted at the end of the undertaking, and provides the Mother is the sole affected family member and not the children.

Submitting that even if a family violence order were in place, the Tribunal should exercise their discretion against issuing passports to the Applicants noting that the Explanatory Statement provides that s 10(3)(f) of the Determination is there as a safeguard in situations where there is family violence and it is not appropriate to contact the non-consenting person to seek consent, thereby obviating the ordinary requirement of contacting the non-consenting person to seek consent. Moreover, this power would not be used if the family violence order permits access or contact between the non-consenting person with parental responsibility and the child.

(c) Section 11(2)(b) permits a passport to be issued if the Minister is satisfied that the children's physical or psychological welfare would be adversely affected if they were not able to travel internationally.

There was no evidence suggesting that children's physical or psychological welfare would be adversely affected if they were not able to travel internationally. That is, there is no evidence before the Tribunal that the children will suffer any detrimental effect of a significant nature should they be unable to travel internationally.

In this regard, department policy provides that risk of physical or psychological harm to the child includes any detrimental effect of a significant nature, and that an example includes cases where the child's medical needs are life threatening and cannot be met if the child is unable to travel internationally, as the child's current country of location does not provide (or the child cannot access) the needed medical care. Further, evidence should be in the form of a written statement from a registered healthcare provider and must state impartially whether the physical and/or psychological welfare of the child is at risk if the child is not able to travel internationally.

Whilst accepting the children may feel disappointment because they are unable to travel internationally, feelings of disappointment do not satisfy the requirement in section 11(2)(b) of the Act.

The fourth issue: whether the discretion to issue the travel documents to the Applicants should be exercised

Submitting an exercise of the discretion in this case would be contrary to the fundamental objectives of the provisions in the Act relating to the issuance of passports to children, which include to protect a child from international parental child abduction and to safeguard the rights of persons with parental responsibility. Noting Senior Member Lazanas comments in TYRQ and Minister for Foreign Affairs [2024] AATA 316:

I accept that the passport application was made more than two years after the father last had contact or last attempted contact with the child and, therefore, the criterion regarding no contact for a "substantial period" is met. This is nevertheless not a case where I consider it is appropriate to issue a passport to the child on the basis that paragraph (d) of s 10(3) of the Determination is enlivened. To exercise the discretion in that way would be contrary to the fundamental objectives of the provisions in the Act relating to the issue of passports to children, in particular, to protect the rights of persons with "parental responsibility".

In these circumstances, the Tribunal ought find that it would not be appropriate to exercise the discretion under s 11(2) of the Act regardless of whether it consider special circumstances were enlivened in the circumstances of this case.

1. The Respondent's representative submitted the decision should therefore be affirmed.

Contentions of the Mother that the passport should be issued

(i) the Other Party has had no regular care of the children since November 2022 nor contact whatsoever since 30 January 2024. > > (ii) formal mediations between the parents to resolve parenting arrangements over the past two years have been unsuccessful. > > (iii) text messages sent to her phone from the Other Party to the children "do not establish meaningful or parental engagement". > > (iv) the Other Party's coercive control amounted to ongoing family violence issues and whilst she accepted there were no current family violence orders, the Other Party has entered into an undertaking with no-contact criteria, consistent with a previous IVO. > > (v) the children's welfare had been adversely impacted by the refusal to grant them a passport.

2. The Mother submitted the following evidence which she contended demonstrated that the father has had no contact with the children for a substantial period of time:

(a) On the 19 March 2024 the family dispute resolution practitioner assessed that family dispute resolution was not suitable at this time and issued a certificate accordingly:

(b) [Father] and [Mother] (party or parties) did not attend family dispute resolution with me and the other party or parties to the proceedings because I consider, having regard to the matters mentioned in subregulation 25 (2), that it would not be appropriate to conduct the proposed family dispute resolution.

(b) An email dated 6 August 2024 from herself to the Father outlining her reasons for why contact with the children at this time is not suitable and requests:

If you would like to have formal consent orders drawn up, I urge you to seek legal representation and have them contact my solicitor .... when you seriously want to begin to discussions about [the children's] care arrangements rather than make demands. Alternatively you can begin proceedings with the court.

(c) Current child support assessment that she has 100% care of the children.

(d) A letter from herself to the Father dated 21 December 2024:

Given more than two years has passed since [the children] have spent regular overnight time in your care, my position has changed. For this reason, among others, I do not believe it is in the children's best interest to resume regular overnight time with you.

Supervised contact is a standard approach to re-establishing contact in circumstances such as ours, and I believe this would be the most appropriate way forward. This arrangement would allow [the children] to gradually adjust to spending regular time with you.

I propose that supervised contact be facilitated through a professional service provider...... It is my hope that these sessions would progress positively and have beneficial outcomes for the children.

Please let me know if you agree with the proposal. Alternatively, if you are seeking other arrangements to spend time with [NTBN and HCKY] you would need to pursue consent orders through the court.

Please also sign and return [the children's] passport documents, which you have held since 25 March 2024 and declined on multiple occasions with the Passport Office. Granting consent for the issuance of their passports is undeniably in the children's best interests and intended solely to facilitate a holiday that would enrich their life experiences. I can assure you, you would be informed of any travel plans. The children are aware that the reason they do not currently have passports is due to your withheld consent.

(e) The following Family Violence Intervention Orders against the Father:

(a) Family Violence Interim Intervention Order made on 31 January 2020 which covered herself and the children.

(b) Family Violence Intervention Order made on 8 September 2020 which covered herself and expired on 7 September 2021.

(c) Family Violence Intervention Order made on 5 May 2021 which covered the children and expired on 4 May 2022.

(d) Family Violence Intervention Order made on 28 September 2021 which covered herself and expired on 27 September 2022.

(e) Family Violence Intervention Order made on 5 October 2022 which covered herself and expired on 4 October 2023.

(f) Family Violence Intervention Order made on 26 September 2023 which covered herself and expired on 9 September 2024.

(g) Family Violence Intervention Order made on 17 September 2024 which covered herself and expired on 26 March 2025.

(h) An undertaking dated 2 May 2025 which expires on 2 November 2025 agreed to by the Father in respect of herself with the same non-contact issues under the former Family Violence Intervention Orders.

(i) A notice to the mother from the Victoria Police dated 9 February 2021 which advised: "I want to Iet you know that the person charged in relation to the crime you reported had their case heard at the ... Magistrates' Court on 27/01/2021. This person was found guilty and was sentenced without conviction and $1000 fine."

(j) Text messages to the Father advising she was taking the children on an interstate holiday.

1. The Mother contended that the evidence demonstrated special circumstances applied under two separate provisions of the determination section 10(3)(d) and (f), as there had been no contact between the children and their Father for a substantial period of time and there was evidence of ongoing persistent issues of family violence.
2. The Mother contended there was no evidence to demonstrate the Father had been actively involved in the children's lives, as he had failed to meaningfully engage in resolution of parenting orders, has chosen not to take opportunities offered to see the children and text messages sent to her do not establish meaningful contact or parental engagement.
3. The Mother contended there was evidence to demonstrate there were family violence orders issued against the Father.
4. The Mother contended it was undeniably in the children's best interests to have passports, allowing them to travel internationally for holidays, family events if they arise and cultural opportunities, without being restricted by an absent parent's refusal. She also contended that it would be unthinkable for the children not to able to take part in planned travel including a family holiday with their nanna, aunties, uncles and cousins to strengthen family bonds, and build lasting memories and enjoy a holiday with close friends and their children, providing an opportunity for all children to spend quality time together and experience new cultures.
5. The Mother contended the Father's objection was not based on genuine child welfare concerns, but on generalised opinion and a history of obstructive behaviour. Submitting that the Father's disengagement, breaches of protective orders and refusal to cooperate show his opposition is not in good faith and is not for the children's best interest or benefit.
6. The Mother contended the purpose of the law for issuing passports to children were to keep children safe and ensure that they will return home to Australia. The Mother contended the children were safe, in her sole day-to-day care and there is no risk of non-return. Submitting she owns and resides in her own home, has secure long-term employment, the children are settled at school where they have many friends, the children are connected to community through participation in various sporting clubs, and all their family and friends reside in Australia. Contrary to the Father's claims, she has always advised him of the children's travel arrangements and would do so again if they travel overseas.
7. The Mother contended she had applied for passports for the children to allow them to build memories, participate in family trips and enjoy normal childhood holiday experiences. The Mother contended the decision should be set aside and the passports granted as the Father was simply using his refusal to consent as another form of control over her and the children.

Contentions of the Father opposing the issuance of a passport

(a) that he has been attempting for many years to resolve the issue of parenting arrangements with the children's Mother, but she had refused all reasonable proposals. > > (b) that he has had continual contact with the children, sending them texts via the Mother, visiting them at school, running into them at the shopping centre and receiving Father's Day cards from them in September this year. > > (c) he had a right to know where his children were at all times and did not trust their Mother to keep him informed of any overseas travel itinerary. > > (d) he feared he would not be informed of any adverse incidents the children were involved in whilst overseas and he would be unable to assist them if anything went wrong. > > (e) he did not fear the Mother would remove the children from Australia permanently.

2. The Father submitted the following evidence which he contended demonstrated he has had contact with the children in the last two years:

(a) Numerous text messages for the children sent to the Mother's mobile number. > > (b) Photos of him and the children dated 16 December 2023, 25 December 2023, 26 December 2023 and 30 January 2024.

3. The Father's evidence to the Tribunal was he had attempted to start the process of seeking final Parental Orders in the Family Court and envisaged the orders would include travel arrangements for the children, both domestic and international.
4. The Father contended he fundamentally considered the children too young to travel overseas, feared not knowing where his children were and considered it too great a risk to consent to the passports being issued.

1. The prohibition in s 11(1) of the Passports Act against issuing a passport to the children in the absence of consent from both parents does not prevent a passport being issued where there are special circumstances as defined in s 10 of the Determination or welfare reasons under s 11(2)(b) of the Passports Act.
2. When there has been no contact between the child and the non-consenting person for a substantial period, the Determination allows the Minister to issue a passport to a child without the consent of each person with parental responsibility.
3. The Tribunal accepts the Mother's evidence that the Father has not been actively involved in the children's lives for a substantial period of time and that he has provided no evidence to demonstrate any meaningful contact or parental engagement with the children.
4. Whilst accepting the Mother's evidence, the Tribunal cannot find the Father has had no contact with the children for a substantial period, in accordance with the Passports Act and the Determination.
5. The Act and the Determination do not define 'substantial period' of no contact between the child and the non-consenting person for paragraph 10(3)(D) of the Determination. However, guidance is provided by the Explanatory Memorandum to the Determination which provides that "in most cases, a substantial period during which there has been no contact is considered to be up to two years but may be less depending on the age of the child and the circumstances of the application." Contact includes all forms of contact (for example in person, telecommunications, social media and any other avenue of communication), excluding incidental contact. Incidental contact is defined as unintended contact, i.e. a chance meeting in the street or a meeting at a family funeral. Unreciprocated contact is still contact.
6. The evidence provided by both parents demonstrates the Father has had contact, as outlined by the determination and found by numerous other Tribunal Members, with the children. The evidence before the Tribunal demonstrates the Father in the last two years had seen his children at Christmas time, at the commencement of the school year and had sent numerous texts to them. Again, whilst the Tribunal understands the Mother's objection that texts to her phone do not establish contact, it has been widely accepted that contact does not need to be in person or reciprocated. Noting the finding of Member Mitchell in LFRS and Minister for Foreign Affairs [2021] AATA 79:

As such the Tribunal considers that in determining the meaning of "contact" for the purposes of section 10(3)(d) of the Determination it is appropriate to look at the meaning of the word and the intention and purpose of the Act together with the relevant explanatory material. > > It is clear to the Tribunal that the Act seeks to ensure that passports are only issued to children where all parties (or in this case parents) with parental responsibility consent to the issuing of the passport, other than in limited situations. Parental responsibility is maintained regardless of the level or type of interaction between the parent and the child and is only displaced through a court order. > > As outlined above the objects of section 11 of the Act in relation to issuing passports to children was outlined in the Explanatory Memorandum, Australian Passports Bill 2004 (Cth) and are to protect a child from abduction and to protect the rights of a parent. > > The Oxford Dictionaries Online defines contact in the verb form to mean "communicate with (someone), typically in order to give or receive information"[46] which is consistent with the definition outlined above by the Respondent taken from the Macquarie Dictionary. > > The Tribunal notes that the previous iteration of the Determination provided examples of contact of which were not included in the current Determination, nor did the Explanatory Statement address the change. The Tribunal considers that the 2005 Determination envisaged incorporating contact to mean forms of electronic contact (for example e-mail) and non-physical or non-in person forms of contact being the telephone (which if interpreted broadly may include telephone calls, voice messages and text messages). As such the Tribunal considers that the change in the particular drafting of the contact special circumstance in the new Determination cannot be said to have limited the scope of the meaning of "contact". Doing so would not be consistent with the objects of the Act or Determination as outlined above. > > Further the definition of contact on its own and when considering the Act, the Determination and associated Explanatory Statement does not refer to any such contact being limited to in-person contact. > > Based on the evidence provided at Hearing by both the Applicant and the Father, the Tribunal considers that the most recent contact made by the Other Party with the Applicant was in April 2019. Given there were a number of contacts both responded to and not responded to by the Applicant sent by the Other Party during the two years preceding July 2019, the Tribunal considers that there has not been a substantial period of no contact. The fact that the Applicant may not have wanted the contact made by the Other Party or that she did not respond on a large number of occasions is not relevant to contact being made by the Other Party.

7. The Tribunal did not doubt the Mother's evidence that there had been a long history of family violence involving coercive and controlling behaviour from the Father as evidenced by the string of family domestic violence orders in place. However currently there is no family violence order preventing the Father from having contact with the children. Additionally, the current undertaking agreed by the parties is not a binding court order and the Mother's own evidence is she has been attempting to have the Father resolve parenting orders for the children to maintain contact with their Father.
8. As such Determination s.10(3)(f) does not apply in the present circumstances as there was no evidence before the Tribunal that a "family violence order has been issued against the father". Accordingly, the Father's coercive behaviour towards the Mother and the children is not a 'special circumstance' for the purposes of 10(3) (f) of the Determination.
9. The Tribunal found here as in many cases both parents had put their own wellbeing above that of their children. Both parents had not been able to arrive at an equitable accommodation to support the children's need to have an ongoing relationship with both parents. The Father's refusal to consent to a passport seemed more bound up in his desire to use this as a vehicle to resolve the ongoing access dispute and not a genuine fear his children would be abducted or harmed whilst overseas. The Mother's refusal to not pass on genuine texts from the Father to his children also appear to the Tribunal as cruel given their Father has no other means of communicating with his children.
10. In considering whether the children's welfare (physical or psychological) would be adversely affected should they not be issued with a passport in accordance with section 11(2)(b) of the Act, the Tribunal relied upon the determination which identified risk of physical or psychological harm to the child and includes any detrimental effect of a significant nature on a child's physical, psychological or emotional well-being. Noting risk to the child's physical welfare includes cases where the child's medical needs are life threatening and cannot be met if the child is unable to travel internationally, as the child's current country of location does not provide (or the child cannot access) the needed medical care.
11. Any application made under s11(2) (b) of the Act is required to be accompanied by a written statement from a registered healthcare provider. The healthcare provider must be registered with a registration authority as a member of a particular health profession. The policy also states:

The healthcare provider must state impartially whether the physical and/or psychological welfare of the child is at risk if the child is not able to travel internationally.

12. Whilst the Tribunal appreciates fully the Mother's desire for her children to experience the joys and benefits of internation travel and more importantly appreciates the heart ache of not being able to be a part of lifelong memories with family and friends, this does not amount to risk of physical or psychological harm as defined in the determination. Noting the Member 's finding in LFRS and Minister for Foreign Affairs [2021] AATA 79:

While the Tribunal accepts that having a passport opens up opportunities to travel and expand the Applicant's horizon's, the Tribunal agrees with the interpretation of section 11(2)(b) of the Act as provided by the Tribunal in FCMX v Minister for Foreign Affairs [2017] AATA 740 as outlined at paragraph 38 above. Disappointment alone in the absence of any further evidence does not establish that the Applicant would suffer any physical or psychological harm or long-term damage to her endeavours.

13. The Tribunal did not find on the evidence there was any risk the children would be removed from Australia permanently given the Mother's and children's lives are firmly anchored in Australia. However, the Tribunal concurred with the Respondent that the fundamental objectives of the child passport provision, namely, to protect a child from abduction and to protect the rights of parents should be upheld and considered it would not be appropriate for the Tribunal to conclude that the discretion should be exercised.

1. The Tribunal, whilst fully appreciating the disappointment this will cause both to the Mother and the children, finds it is not appropriate in the circumstances of this matter to exercise the discretion to issue a passport to the children under s 11(2) of the Passport Act.

....................[SGD]....................

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers