ADMINISTRATIVE REVIEW - Foreign Affairs - Applications for passports - Child Applicants - Parent refused consent - whether "special circumstances" exist - whether "no contact" for a "substantial period" - Family Violence Order - discretion - decision affirmed to refuse to issue passports

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)

Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)

FCMX v Minister for Foreign Affairs [2017] AATA 740

HGPV and Minister for Foreign Affairs [2023] AATA 339

Hneidi And Others v Minister for Immigration and Citizenship [2010] FCAFC 20

LFRS and Minister for Foreign Affairs [2021] AATA 79

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Singh v Minister for Foreign Affairs [2025] ARTA 265

TYRQ and Minister for Foreign Affairs [2024] AATA 316

WHRD v Minister for Foreign Affairs [2024] AATA 1556

Explanatory Memorandum to the Australian Passports Bill 2004

Explanatory Statement to the Australian Passports Determination 2005

1. Applicants PNBT (born 2011) and VFTH (born 2010) are children. Their father (the Father) acts on their behalf in these proceedings. On 8 August 2023 the Father lodged applications on behalf of the Applicants for Australian passports pursuant to the Australian Passports Act 2005 (Cth) (the Act). On 29 September 2023 the Applicants' mother, BXLW (the Mother), refused consent for the passports to be issued.
2. On 6 October 2023 a delegate of the Minister for Foreign Affairs (the Respondent) refused each of the passport applications on the basis that both persons with parental responsibility did not consent, such that section 11(1)(a) of the Act was not met. The delegate was also not satisfied that special circumstances existed under section 11(2) of the Act.
3. On 1 November 2023, the Father applied to the Respondent for review of the original decision under section 49(1) of the Act. On 8 January 2024, the Respondent affirmed the original decision not to issue an Australian passport to the children pursuant to section 49(4) of the Act (the Reviewable Decision), for the following reasons:

(a) The Mother continued to have "parental responsibility" for the children as that term is understood in section 11(5) of the Act, in circumstances where no evidence had been presented to overcome the presumption of parentage in section 69R of the Family Law Act 1975 (Cth) (Family Law Act). The parenting orders made on 9 August 2018 specified that the father and the mother had equal shared parental responsibility, and there were no subsequent court orders which stated that the mother ceased to have parental responsibility; and the mother had not consented to the applications. Therefore, section 11(1)(a) of the Act was not met; > > (b) The parenting orders did not permit the children to have an Australian travel document; travel internationally; and/or live or spend time with another person who is outside Australia. Therefore, section 11(1)(b) of the Act was not met; > > (c) A special circumstance was enlivened under section 11(2)(a) of the Act and section 10(3)(f) of the Determination because the Father had provided a 'family violence order' issued against the mother, within the meaning of that term in section 4(1) of the Family Law Act. > > (d) As section 10(3)(f) of the Determination was enlivened, the delegate proceeded to consider whether to exercise their discretion to issue Australian travel documents to the children, despite section 11(1) of the Act not being met. The delegate considered that contact was permitted under the Family Law Act order. Further, there had been contact between the Mother and the children since the family violence order was made. As such, the delegate was not satisfied that the discretion should be exercised.

4. By applications dated 15 February 2024 (2024/1152) and 20 September 2024 (2024/7228), the Father sought review of the 8 January 2024 Reviewable decision pursuant to section 50 of the Act, also seeking extensions of time.
5. On 10 July 2024 the Administrative Appeals Tribunal (the AAT) made an order extending time for the making of a review application pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to application 2024/1152. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) commenced. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. On 30 April the Tribunal made an order extending time for the making of a review application pursuant to section 19(2) of the Administrative Review Tribunal Act 2024 (ART Act) in relation to application 2024/7728. Applications 2024/1152 and 2024/7728 were joined and the Tribunal also made an order pursuant to section 22(1)(c) of the ART Act joining the Mother to the proceedings.

1. Section 7(1) of the Act entitles an Australian citizen, on application to the Respondent, to be issued with an Australian passport:

Australian citizen is entitled to be issued an Australian passport > > (1) An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister. > > (2) An Australian citizen's entitlement to be issued with an Australian passport is affected by section 8 and by Division 2. > > (3) An application for an Australian passport must be: > > (a) made in the form approved by the Minister; and > > (b) accompanied by the applicable fee (if any).

2. Section 11 of the Act, which is in Subdivision A, Division 2 of Part 2 of the Act, sets out the reasons the Respondent may refuse to issue a passport to a child. Relevantly:

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; > > > > ... > > 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(3) of the Australian Passports Determination 2015 (the Determination) sets out the "special circumstances" for the purposes of section 11(2)(a) of the Act. Section 10 of the Determination provides:

10 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:

(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:

(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:

(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

(4) In this section, the following expressions have the same meaning as in the Family Law Act 1975:

(a) child welfare law;

(b) family violence;

(c) family violence order.

1. The Father provided the following evidence to the Respondent in the course of his applications for the Applicants' passports, which he relied on in these proceedings:

(a) Child passport applications for PNBT and VFTH dated 8 August 2023, attaching: > > > (i) Birth certificates; > > > > (ii) Father's identity card and Drivers Licence; > > > > (iii) Court order dated 9 August 2018 in the Federal Circuit Court pursuant to the Family Law Act (the 9 August 2018 Court Order); > > > > (iv) Copy of extracted SMS correspondence between Father and Mother on 17 May [2023] and 22 July [2023], with handwritten comments; > > (b) Redacted health information; > > (c) Family Violence Final Intervention Order (FVO) dated 8 March 2019 against the Mother; > > (d) Email to Department dated 16 November 2023; > > (e) Statutory declaration dated 10 July 2025.

2. In addition to the Tribunal Documents (including Amended and Supplementary Tribunal Documents) filed pursuant to section 23 of the ART Act, the Respondent provided the Tribunal with a Chronology and a Statement of Facts, Issues and Contentions dated 4 August 2025.
3. In addition to the documents provided to the Respondent, as contained in the Tribunal Documents, the Mother provided the Tribunal with:

(a) a written submission; > > (b) screenshots of text messages from her to her child PNBT's phone; > > (c) screenshot of phone call record, showing calls made by her to her child PNBT's phone; > > (d) copies of phone bills for her child PNBT's phone; > > (e) copies of account statements for child support payments made by her to the Father for both of the Applicants.

4. Both the Father and the Mother gave oral evidence at the hearing and were cross-examined by the Respondent's solicitor. The Father was given the opportunity to cross-examine the Mother on her evidence and declined.

1. In the Applicants' passport applications, the Father stated there had been "No response" to his attempt to contact the Mother by mobile phone, and described the contact between the Mother and each of the Applicants as:

Contact is generally made by phone call approximately once per fortnight. Contact visits occur approximately three times per year.

2. The Father stated in the passport applications that the last contact between the Applicants and the Mother was a "contact visit" on 24 July 2023, and noted that he received monthly child support payments from the Mother for each child.
3. In the passport applications, the Father included SMS communications from himself to the Mother in May 2023 which he claimed were unanswered. Those SMS stated:

Wednesday 17 May 5.21pm > > [Mother] can you please sign a passport form for the boys so I can take them to New Zealand? [VFTH] is in a squad of junior cricketers who if selected in the final 20 will be travelling to New Zealand later this year. The boys are very excited at the prospect of travelling to another country. We would only ever travel to safe and reputable areas. > > Saturday 22 July 11.18pm > > [Mother] the boys and I have all previously asked you if you will please sign a passport form each for the boys. It will come at no expense or obligation to you at all, as I will cover the entire cost of both passports and the boys will bring the forms to you. The understanding they have from asking you is that you are not willing to do this. With that thought they're extremely disappointed to say the least, particularly [VFTH], as it could jeopardize a huge once in a lifetime opportunity he may get to do something that he loves and potentially, the opportunity to travel to New Zealand. Even if that particular opportunity doesn't eventuate, my friend Burkey lives in New Zealand now and I would like to take the boys over there for approx 10 days to see him and his boys, do some sightseeing with them and watch a test match, as Australia plays cricket there in February. Can you please just let me know, yes or no if you are willing to do this?

In a statutory declaration dated 10 July 2025, the Father stated:

[The Mother] has not communicated with either of her children, [PNBT] and [VFTH] or with [the Father] as a means to which to communicate with the children since January 12, 2024. > > [The Father] owns property in Queensland and works in Queensland and resides in Queensland and will not be using passports as a means to relocate overseas with my children.

The Father's evidence at hearing was that in 2023 there were communications between the Mother and the Applicants, but as time went on, that communication became limited. He described the communication prior to January 2024 as:

Not a consistent passage of communication. She would just call - or they may call her - I didn't keep tabs because I didn't mind.

He described the frequency of communication as:

I can't state as fact. Once or twice a month, sometimes every 4 to 6 weeks, sometimes more often.

The Father recalled that the last in-person contact between the Mother and the Applicants was "probably" in 2023. He asserted there had been no communication from the Mother to the children for 22 months as at the date of the hearing. He stated that the Mother last spoke to the children on 12 January 2024, or at least there was an attempt to do so, via SMS. When asked why there was no contact between the Mother and the children after 12 January 2024 he said that the children had not tried to reach her, and:

I'm not sure on her behalf. The kids were excited for the passport application. They've made their choices. There were no attempts through me.

The Father asserted that he had "gone above and beyond" in facilitating the Mother having contact with her children, stating:

I've made it clear to her she could contact them, over and beyond.

The Father said that he had applied for passports for the Applicants so they could have cultural experiences, go on sports tours, have a holiday, and noted that one of the Applicants in particular had a keen interest in geography. When asked about the impact of the passport refusal decision on PNBT, he stated:

Extreme disappointment, that a differing in thinking stopped an opportunity for him. There was a negative impact on the relationship between a parent [the Mother] and child. There was no physical impact, but there was an emotional impact. He was let down, extremely disappointed, withdrawn. > > I have spoken to his School's Wellbeing [support]. There's no need for mental health intervention. The school offered him support but he chose not to take any mental health appointments.

When asked about the impact of the passport refusal decision on VFTH, if it was the same as PNBT, he stated:

Yes. Extremely disappointed. VFTH had an opportunity for the Gold Coast cricket squad but we had to withdraw his application. He kept asking why, why would Mum do that?

In her responses to the Applicants' passport applications, dated 29 September 2023 and 1 December 2023, the Mother refused her consent and stated:

I do not give my consent to this passport application because their father and myself have equal shared parental responsibility for the children, which was decided in the Federal Circuit Court. [The Father] took off to QLD to live with the children without my consent and broke these court orders, therefore my given times that I spend with [PNBT] and [VFTH] are not being met, please note these times and days were all agreed on by both parents. > > I speak to my boys on the phone and also send text messages, I know have to travel interstate at my own expense to spend anytime with the children. > > I am in fear that [the Father] will try and re-locate overseas, to prevent me seeing my children. He does not communicate with me. > > ... > > I do not give my consent for my 2 boys to have a passport, because my ex-partner broke a federal court order and removed my 2 boys from Melbourne and took them interstate without my consent, which now denies me my time I have to spend with them. I have already provided court documents which state we both have shared parental rights and responsibility. I am very concerned that if he leaves the country, I will never see my boys again as he does not communicate with me. I currently know they live in QLD as I have been to visit them several times. They have been taken away from me because of their father, with no consent, which is a serious breach.

The Mother included a handwritten annotated version of the Engrossed Minute to the 9 August 2018 Court Order with her refusal of consent. The Engrossed Minute contained detailed itemisation of how parental responsibility was to be shared by the Mother and Father, and the facilitation and restrictions associated with the shared parental responsibility. It was unclear whether the handwritten annotations were amendments that she had sought at the time the 9 August 2018 Court Order was made, or were amendments or commentary after the 9 August 2018 Court Order was made, at the time that she refused her consent for the passport applications, or prior. Either way, the handwritten notations identified which items of the Engrossed Minute were "not happening", "never happened" or "need changing", and additional comments:

He has taken off to Queensland without my consent > > ... > > [The Father] has said horrible things about me to the boys and they know everything coz he has told them

Just prior to the hearing, the Mother provided the Tribunal with the additional documents described above at [‎12]. The Mother's written submission stated:

I deny the [Father]'s claim that I have not attempted to make any contact with my children, I had refurbished my daughters old iphone to give to my son PNBT and have constantly paid for this phone to be active and receive texts and phone calls. For the past two years I have paid for this phone so that I can remain in contact with my children. I have texted and rang this number and have received no responses. Recently I have noticed the phone is not being used at all, almost like it's been turned off/shut off. > > My son PNBT and I are very close and were texting several times throughout the days and calling each other weekly, right up until I went to visit them in Queensland in 2023. We saw each other almost everyday during our visit and after we had returned home all communication was stopped. I'm under the assumption that this was done on purpose to make it seem like I don't have any contact with my children. After this I've made numerous attempts to ring my children and text them through the phone that I provided to them so that I could stay in contact with them. > > Under the law, I remain a legal parent of these children with rights and responsibilities, and I wish to continue to exercise my parental responsibilities and to be involved with the children's lives and I still DO NOT consent to my children having Australian passports. I've paid child support monthly and have paid $50 a month to have a phone connected so that my children can contact me. These efforts demonstrate my commitment to my role as the mother of these children. I believe the [Father] has knowingly prevented the children from making any contact with me in hopes that it will further his likelihood to gain these passports. > > The [Father] has made no clear contact with me regarding the passports and why they are needed or the plans for them. He had only messaged me once a couple of years ago with no instructions or key information only that our son was invited to play Cricket. There is no reason why my children need to travel overseas as we do not have any family members living in New Zealand or to my knowledge nobody is critically ill. > > Given the fact the [Father] has already absconded interstate with my children with no prior information given to me about the welfare and location of my children. I am extremely distressed for the safety of my children and concerned about the dangers of traveling overseas, considering the respondent and I have very minimal contact and I fear the [Father] may deliberately withhold information about his travel plans or his true intentions. > > I request the Tribunal recognise my ongoing parental rights although [the Father] hasn't allowed me to have anything to do with my children due to the fact that he moved interstate with my children without my consent nor knowledge. I have made genuine and ongoing efforts to maintain contact with my children but these have been intentionally ignored by the respondent. I ask the Tribunal to request appropriate parenting arrangements to be put in place to allow regular contact, decision-making and visit between me and my children. > > Please find attached photos of the monthly phone bill I pay in order to have a constant connection with my children, My monthly child support invoices, text messages between myself and PNBT and some calls I had received/ tried to call.

The screenshots of text messages identify the phone number they are being sent to as PNBT with a picture of a dinosaur. There are conversational text messages between PNBT and the Mother starting from 14 September 2023, and it is clear from the screenshots that more text messages prior to 5 November 2023 which weren't included in the evidence provided to the Tribunal:

14 Sep 2023 at 6.23pm > > PNBT: Hi Mum sorry haven't been in contact > > Mother: Hi PNBT, it's so nice to hear from you!!! I really miss you [kiss emoji]/ How are you?? > > PNBT: Good you > > Mother: Yes I'm good too / What u been up too!! / School holidays soon for you > > PNBT: Yes > > Mother: Are u doing anything > > PNBT: idk > > Mother: Gotta work out how I can send you Xmas presents / McDonalds doing pokemon cards again > > PNBT: Oh Okay / Where will you send them? > > Mother: I might look into those parcel post boxes / I don't know how they work / Because your off to high school next year > > PNBT: Yeah true > > 28 Sep 2023 at 5.00pm > > Mother: Hi PNBT, how are you? > > PNBT: Good / And you > > Mother: What you been up too?? > > PNBT: Nothing much

From 5 November 2023 the Mother continued texting her son but received no responses:

5 Nov 2023 at 5.17pm > > Hi PNBT I hope u are good, I tried to call you, please call me back!! I Miss you xxxx [purple heart emojis] > > 24 Nov 2023 at 6.21pm > > Hi PNBT, haven't heard from you for ages??? > > 25 Nov 2023 at 4.58pm > > Hello PNBT > > 30 Nov 2023 at 5.37pm > > Hello PNBT, how are u? > > 5 Dec 2023 at 7.05pm > > Hi PNBT how are u? > > 25 Dec 2023 at 11.04am > > Merry Christmas PNBT and VFTH I Love you xxx [purple heart emojis] / I tried to call u > > 27 Dec 2023 at 12.55pm > > Hi PNBT and VFTH, Merry Christmas to you both xxx / Can u please reply to me > > 27 Dec 2023 at 7.45pm > > Is everything ok? > > 8 Jan 2024 at 3.01pm > > Happy Birthday VFTH xxx > > 8 Jan 2024 at 4.21pm > > Is there a reason why you're not replying to me? / That's why I gave you a new phone, to keep in contact with me > > 12 Jan 2024 at 12.17pm > > Happy Happy Birthday PNBT, 13 years old today, you're now a Teenager!!!! [celebration emojis] xxxxx / Please send me an address so I can send you yours and VFTH's Christmas presents, I Love you and VFTH xxxxx [cake emojis, donut emojis] > > 14 Jan 2024 at 7.04pm > > Goodbye PNBT xxx > > 25 June 2024 at 5.55pm > > Hi PNBT how are you going? / I'm thinking of coming up to qld soon, do u want to catch up? > > 8 Jan [2025] at 5.00pm > > Happy Birthday to VFTH!!! The big 15, love always Mum xxx > > 13 Jan [2025] at 2.02pm > > Happy Birthday PNBT, 14 years old Love Always Mum xxxx > > 28 March [2025] 9.45am > > Hi PNBT, Hi VFTH haven't heard from you for ages!! I hope you are ok??

A screenshot of the Mother's call records show that she attempted Facetime calls with PNBT on 31 August 2022, 24 February 2023, and 11 February 2024. It is unclear from the screenshot if the calls connected or were missed. Copies of phone bills and child support payment accounts support the Mother's submissions that she continued paying for a phone for her son throughout 2023, 2024 and 2025, and was paying child support. 7. At hearing the Mother gave evidence that she last visited her sons in Queensland in 2023. She gave PNBT a mobile phone when she last saw him, which she used to message him. She said she had tried numerous times to contact her sons but that the number she gave PNBT was "non-existent now". She had not been provided with her sons' new mobile phone numbers by the Father. 8. In relation to the FVO from 2019 she stated that she had also taken out an FVO against the Father, although there was no evidence before the Tribunal supporting that statement. 9. Talking about the children, the Mother said:

I still wish to see them. I don't like that my kids are not responding to me. Their Father has put in the paperwork that there have been no communications for 2 years in order to get the passports. I have a good relationship [with the kids], especially with [PNBT]. The Father is turning the kids away from me.

10. Under cross examination the Mother stated that she had not made any phone calls to her son PNBT in 2025 because:

My son hasn't been responding. I'm lost because the number I set up, according to the phone provider, is no longer in existence.

11. The Father was recalled as a result of the Mother's evidence. Under cross-examination the Father insisted that he had not told the children not to contact their mother, stating:

She can always contact me. I have always communicated... I think the relationship (between the Mother and children) is very important.

12. Regarding the FVO order the Mother alleged had been taken out against the Father, he said:

I recall many times being interviewed, and released without charge. They were frivolous accusations.

1. It is undisputed that each of the Mother and the Father has parental responsibility for PNBT and VFTH. The birth certificates of each of PNBT and VFTH support the conclusion that the Mother is each of their biological mother, and the Father is each of their biological father. The 9 August 2018 Court Order specifies that the Mother and the Father have equal shared parental responsibility. There is no evidence of subsequent Court Orders affecting that parental responsibility.
2. The Mother's response to the passport applications and the Mother's evidence before the Tribunal demonstrates that she does not consent to either PNBT or VFTH having an Australian passport. Section 11(1)(a) of the Act is therefore not met.
3. The 9 August 2018 Court Order does not provide for PNBT or VFTH to have an Australian travel document, travel internationally or live or spend time with a person outside of Australia. Section 11(1)(b) of the Act is therefore not met.
4. Although I accept the Father's evidence that each of PNBT and VFTH were "extremely disappointed" by the passport application refusal, feelings of disappointment do not satisfy the requirement in section 11(2)(b) of the Act: FCMX v Minister for Foreign Affairs [2017] AATA 740 (FCMX) at [24]; LFRS and Minister for Foreign Affairs [2021] AATA 79 at [63]. The evidence from the Father, which I accept, was to the effect that the "extreme disappointment" did not extend to any diagnosed mental health issues, and that VFTH was offered support by his School but did not take up that offer. Even if the Father's description of VFTH being "let down" and "withdrawn" suggests there were some psychological symptoms as a result of the passport refusal, this is not sufficient to satisfy the requirement in section 11(2)(b) of the Act. There is no evidence indicating that either VFTH or PNBT would suffer any psychological harm or long-term damage from an inability to obtain a passport and travel overseas during their childhood. I therefore am satisfied on the evidence before the Tribunal that the physical or psychological welfare of each of PNBT and VFTH will not be adversely affected if they each were not able to travel internationally. Section 11(2)(b) of the Act is therefore not enlivened.
5. There is no evidence before the Tribunal that either of PNBT or VFTH urgently need to travel overseas because of a family crisis. The Mother's evidence, which I accept, is that they have no family overseas. Section 11(2)(c) of the Act is therefore not enlivened.
6. Both PNBT and VFTH are onshore in Australia. Section 11(2)(d) of the Act therefore does not apply.
7. The issue before the Tribunal is therefore whether there a "special circumstances" within the meaning of section 11(2)(a) of the Act. The ministerial determination referred to in section 11(2)(a) of the Act is the Determination, set out above. On the evidence before the Tribunal, subsections 10(3)(a), (b), (c), (e), (g), (h), (i), (j) do not apply in these proceedings.

Section 10(3)(d) of the Determination: no contact ...for a substantial period

1. In relation to section 10(3)(d), there is no definition in the Act as to what "no contact" or "substantial period" mean. The Explanatory Statement to the Determination states the following at [48]- [49]:

Paragraph 10(3)(d) - no contact between child and parent > > [48] Paragraph 10(3)(d) provides grounds to issue a passport to a child where the non-consenting person has not had contact with the child for a substantial period of time. > > [49] 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.

2. The Respondent referred to a policy published by the Department of Foreign Affairs and Trade in relation to the applications of section 10(3)(d) of the Determination (the policy). The policy provides the following guidance:

No contact between the child and non-consenting person for a substantial period - application of special circumstance > > The Australian Passports Act 2005 and the Australian Passports Determination 2015 (the Passports Determination) do not define 'substantial period' of no contact between the child and the nonconsenting person for paragraph 10(3)(D) of the Passports Determination. > > Guidance is provided by the Explanatory Statement to the Passports 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." > > ..... > > POL022013 Contact between the child and the non-consenting person - definition > > Contact includes all forms of contact (for example in person, telecommunications, social media and any other avenue of communication). > > Incidental contact is defined as unintended contact, i.e. a chance meeting in the street or a meeting at a family funeral. > > Unreciprocated contact by the non-lodging person to the child is still contact. > > The APO instructs the lodging person, not the child to pursue the consent of all persons with parental responsibility. > > - The lodging person may encourage the child to contact the nonlodging person to seek their consent. > > - The child may also independently contact the non-lodging person to seek their consent. > > A delegate will assess all contact, including unreciprocated contact, when assessing whether there has been a 'substantial period' of no contact. > > The delegate may exclude one off or limited contact by the child for the sole purpose of seeking consent to a passport application.

3. The Tribunal is not bound by the policy, but agrees with the Respondent's submission that it should be considered, unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, and that consistent application of policy by administrative decision-makers is desirable (Hneidi And Others v Minister for Immigration and Citizenship [2010] FCAFC 20 at [43]).
4. In the decision of LFRS and Minister for Foreign Affairs [2021] AATA 79 at [60], the AAT concluded that the time period of two years, as outlined by the Explanatory Statement, should be accepted in relation to the issue of what constitutes a substantial period for the purposes of section 10(3)(d) of the Determination. The Tribunal adopted the same position in Singh v Minister for Foreign Affairs [2025] ARTA 265 at [25]; TYRQ and Minister for Foreign Affairs [2024] AATA 316 at [32]; and HGPV and Minister for Foreign Affairs [2023] AATA 339 at [121].
5. In relation to section 10(3)(d), the Father submitted that there had been no contact between PNBT and VFTH, and their Mother, for a "substantial period". The Father's evidence and submissions at hearing were to the effect that the Mother had not had contact with the children for nearly two years - specifically, 22 months - prior to the hearing.
6. The wording of the Determination requires that the period of 'no contact' occurs before the passport application is made.
7. The evidence before the Tribunal demonstrates that the Mother was in regular contact with the children prior to the passport applications being made on 8 August 2023. On the Father's own evidence, contact occurred by phone around twice per month throughout 2023 and prior. In the passport application the Father stated that the Mother had in-person contact with the children around 3 times per year. On the Mother's evidence, the last in-person contact she had with the children was in 2023. This was on 23 July 2023, according to the Father, just 15 days prior to the passport applications being made by him.
8. The Mother's evidence of her text messages and phone calls to PNBT, which I accept, is that her attempts at contact from 5 November 2023 were unreciprocated. Unreciprocated contact is still contact. The text messages from the Mother did not only constitute contact between her and PNBT, but I find they also constituted contact between her and VFTH. The text messages from the Mother to PNBT also clearly included messages for VFTH on his Birthday and in relation to Christmas. Despite the Father's evidence that he facilitated communications between the Mother and her children, and the Tribunal's request to the Father during the hearing, there was no objective evidence provided by the Father to support those assertions. The Mother's evidence of providing PNBT with a phone because the Father did not communicate with her, and her evidence that she did not have current telephone numbers for her children, is evidence supporting a finding that the Father did not, in fact, facilitate communications between the Mother and her children. This is, as submitted by the Mother, contrary to the 9 August 2018 Court Order.
9. This is not the correct jurisdiction in which the Father and Mother can amend or vary court orders made under the Family Law Act, or complain of non-compliance with those orders, as submitted by the Mother. It is up to either the Mother or Father to apply to the Federal Circuit and Family Court of Australia for that purpose.
10. The Father's Statutory Declaration dated 10 July 2025 stated that the last communication by the Mother to her children or the Father was 12 January 2024. The Mother gave no direct evidence of having spoken to her children on that specific date, stating that she could not recall the last time she had "called and they picked up", but that it possibly in 2023 or 2024, and that she had tried to contact them in 2025.
11. I make no finding in relation to the Mother's allegations against the Father of deliberate alienation for the purpose of these proceedings. However, the evidence demonstrates that PNBT stopped responding to his Mother's text messages after the Father sought reconsideration on 1 November 2023 of the Decision of 6 October 2023. The Decision of 6 October 2023 made clear that the passport applications were refused because none of the special circumstances under section 11(2) of the Act applied, because there had been continuing contact between the Mother and her children. The Father's Request for Reconsideration dated 1 November 2023 included:

She has not made any attempt to contact or communicate with these boys for the past seven weeks. > > Throughout the time that the children have been in my full time care, [the Mother] has ceased all forms of communication and access with them for months at a time, and only initiates contact or responds to a message or telephone call from her boys, when it's convenient to her. > > ... > > The decision to refuse the children's passports has left both children devastated at this outcome. > > They have done nothing wrong and are the two people most negatively affected for no logical reason explained to me. I can only assume that their mother has not consented for any reason other than spite as she has not communicated with me, [VFTH] or [PNBT] regarding her reasoning. The children have attempted to contact their mother to discuss this, however she will not answer calls from either of them. > > [The Mother] chooses for long periods of time to cease any form of communication and visitation with her boys, showing a lack of care and interest in them, yet has chosen to refuse to consent with no legitimate reasoning or empathy towards the impact of the outcome of this decision on the children. > > Due to her choice of having a lack of contact with and parental responsibility for her boys, their relationship with her has never strongly developed or flourished into a close or loving relationship, hence their utter disappointment, frustration and potential further disconnect with her due to her unexplained decision to not consent. > > She chooses to have and show very little interest in her boys and have any form of positive influence on them, yet when this opportunity arose to do so, she quickly and without reason that would protect or benefit her boys, chose to deny consent. > > The children have spent numerous hours researching many different countries and cultures over the past six months, with the belief that they will be able to visit these locations briefly for a holiday. > > [VFTH] particularly is extremely upset that a potential opportunity to travel overseas in an elite sports squad will not be able to eventuate. > > [The Mother] has provided no reason to myself or the children for her refusal to consent, hence deny them this opportunity.

12. The Father's assertions in that request for reconsideration are not supported by the evidence before the Tribunal, including from the Father under cross-examination, which demonstrates that there was regular contact between the Mother and PNBT and VFTH, and that she did not have "a lack of care and interest in them". Her consistent evidence was that the Father had removed the children to Queensland without her permission and that the distance, and the Father's lack of facilitation, made contact difficult. Nevertheless, she continued contacting her children. Reciprocation of her contact stopped after the Father's request for reconsideration. On 1 November 2023 the Father sought review of that decision and on 5 November 2023 the Mother texts PNBT, concerned as to why he is not responding to her calls:

5 Nov 2023 at 5.17pm > > Hi PNBT I hope u are good, I tried to call you, please call me back!! I Miss you xxxx [purple heart emojis]

13. There is no response from PNBT after that date to the Mother's text messages.
14. Contrary to the Father's assertion, the Mother did provide reasons for her refusal for the passport applications. Those reasons were the Father's non-compliance with the 9 August 2018 Court Order by moving the children interstate without her permission, and her fear that the Father would take the children overseas and she would never see them again. Those fears are not irrational in the circumstances.
15. On the evidence before the Tribunal, it is undisputed that the Mother had regular communication with both PNBT and VFTH by telephone and text prior to the passport applications being made in August 2023, and I also find that the Mother continued in her attempts at communication with PNBT and VFTH throughout 2023, 2024 and 2025, despite there being no response or reciprocations from, at latest, 12 January 2024. I therefore find that section 10(3)(d) of the Determination is not made out.

Section 10(3)(f) of the Determination: Family Violence Order issued

1. The final available "special circumstance" expressed in section 10(3) of the Determination is that of section 10(3)(f) of the Determination. Pursuant to section 10(4)(c) of the Determination, the expression "family violence order" has the same meaning as in section 4(1) of the Family Law Act, that is, "an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence".
2. It is undisputed that there was an FVO, which is a "family violence order", issued against the Mother on 8 March 2019. The 'special circumstance' under section 11(2)(a) on the basis of section 10(3)(f) of the Determination is therefore enlivened.
3. The Tribunal has discretion once section 11(2)(a) is enlivened, to decide whether or not to issue PNBT and VFTH with an Australian Travel Document - in this case, Australian Passports.
4. The Respondent referred to the Explanatory Statement and submitted that section 10(3)(f) was concerned with protection against ongoing risk of family violence, rather than an avenue available following historical or any family violence order. The purpose of the provision was to "safeguard people who are protected by an apprehended violence order by not requiring them to contact a person restrained by such an order: WHRD v Minister for Foreign Affairs [2024] AATA 1556 at [44]. The Explanatory Statement to the Determination at [54] stated:

These are important provisions as it is often not appropriate to contact the non-consenting person to seek consent where there is family violence. Ordinarily, where the non-consenting person is a person with parental responsibility for the child for the purposes of the Passports Act, this power would not be used if a court order (including a family violence order or family law order) permits access or contact between the non-consenting person and the child.

5. The Respondent also relied on the policy, which relevantly provided:

Family violence order status, interplay with other court orders and permitted contact > > Family violence orders that are refused, revoked, withdrawn, rescinded, expired or significantly dated will not ordinarily support the exercise of discretion to issue an ATD. > > Section 10(3)(f) of the Passports Determination wouldn't ordinarily be used to issue an ATD if an Australian court order permits (including by not prohibiting) access or contact between a non-consenting person with parental responsibility and the child. This includes Australian family violence orders or Australian family law orders. > > [...]

6. The evidence before the Tribunal is that the FVO taken out against the Mother in 2019 has long since expired and no further orders were sought. The FVO also did not limit the Mother from contacting the children or spending time with them in accordance with the 9 August 2018 Court Order. As submitted by the Respondent:

...whilst the family violence order prevented the mother from committing family violence against the father and the children, it did not prohibit anything permitted by the Family Law Act order.

...historical and expired family violence orders are capable of satisfying 10(3)(f) of the Act. The age and/or expiration of the order will however be a highly relevant consideration for a decision-maker in respect of whether they decide to exercise the discretion to issue a passport provided for in section 11(2) of the Act.

8. The 'special circumstances' referred to in section 11(2)(a) of the Act, as outlined at section 10(3)(f) of the Determination, are discretionary considerations for the Tribunal to have regard to in determining whether to displace the prohibition stated in section 11(1) of the Act. It is undisputed in these proceedings that both subsections of section 11(1) of the Act apply - the Mother, as a person with parental responsibility, has refused consent; and there is no court order permitting either PNBT or VFTH to have an Australian passport.
9. It is not the Tribunal's role to displace the 9 August 2018 Court Order, which grants both the Mother and Father shared parental responsibility for PNBT and VFTH, unless special circumstances exist. Whilst there was a FVO taken against the Mother in 2019, which enlivens section 11(2)(a) of the Act on the basis of section 10(3)(f) of the Determination, the circumstances of the matters outlined at [63] above demonstrate that the FVO is not an appropriate basis for displacing the Mother's shared parental responsibility for PNBT or VFTH. The Tribunal finds it is therefore not appropriate to exercise its discretion on the basis of section 10(3)(f) of the Determination.

1. I have found that section 11(2) of the Act is enlivened by a section 10(3)(f) of the Determination.
2. In somewhat analogous proceedings, in FCMX at [7] the Tribunal outlined the issue for determination as:

There is no court order in place which would permit the child to travel internationally. In view of the [parent]'s lack of consent for the child to travel internationally, section 11(1) of the Act prevents the respondent from issuing the child with a passport, unless the circumstances in section 11(2) of the Act apply. Therefore the issue before the Tribunal is whether the discretion in s 11(2) of the Act to issue a passport to the child should be exercised.

As noted above at paragraph [7], the power to issue a passport in special circumstances is discretionary. This is evident from the wording of section 11(2) of the Act, which states that the existence of special circumstances does not prevent the Minister from issuing a passport. Similarly, although the Determination cannot be used to alter the nature of the power contained within section 11(2) of the Act, section 2.1(1) of the Determination states that the special circumstances outlined in the Determination are special circumstances in which the Minister may issue a passport to a child. > > The Tribunal further notes that paragraph 24 of the Explanatory Memorandum to the Australian Passports Bill 2004 states that "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". Similarly, the Explanatory Statement to the Determination indicates at paragraph 8 that "Even if an applicant satisfies one or more of the special circumstances, the Minister may refuse to issue a passport to meet the objectives of protecting a child from abduction or protecting the rights of a parent".

4. I adopt that reasoning. In similar terms to the Tribunal's findings in FCMX, it would be contrary to the objective of protecting the rights of parents in the Act and the Determination for the Tribunal to exercise its discretion on the basis of an expired FVO which did not, in any event, impinge on the Mother's shared parental responsibility for both PNBT and VFTH according to the 9 August 2018 Court Order.
5. The are no other 'special circumstances' within the meaning of the Act or Determination which are applicable in these proceedings. The Mother's decision to refuse consent for the passports to be issued therefore must prevail.
6. I agree with the Respondent's reviewable decision and the reasons provided for it (at [3] above). The correct or preferable decision is therefore to affirm the Respondent's reviewable decision of 8 January 2024.

1. The Tribunal affirms the Respondent's reviewable decision of 8 January 2024 to not issue passports for PNBT or VFTH.