ADMINISTRATIVE REVIEW - Foreign Affairs - Application for passport - Child Applicant - whether "special circumstances" exist - domestic violence and coercive control - whether "no contact" for a "substantial period" - discretion - decision set aside - passport granted

Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)

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

S and Minister for Foreign Affairs (General) [2018] AATA 1083

Singh v Minister for Foreign Affairs [2025] ARTA 265

TYRQ and Minister for Foreign Affairs [2024] AATA 316

Explanatory Memorandum to the Australian Passports Bill 2004

Explanatory Statement to the Australian Passports Determination 2005

1. The Mother of Applicant LNJD (born 2019) acts on their behalf in these proceedings. On 13 June 2024 the Mother applied for a passport pursuant to the Australian Passports Act 2005 (Cth) (the Act) for LNJD. With the application, the Applicant provided a Form B-8 which is required where only one parent is named on a child's birth certificate, and completed part 5 of that form, providing the Applicant's father's name.
2. On 18 September 2024 a delegate of the Minister for Foreign Affairs (the Respondent) refused the passport application 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 18 September 2024, the Mother applied to the Respondent for review of the original decision under section 49(1) of the Act. The Mother indicated that it was not safe or reasonable for her to contact the Father and asserted there were special circumstances including:

(a) the Father of the Applicant has been "abusive, violent and a perpetrator of coercive control since before [their] birth" which is why he is not listed on their birth certificate; > > (b) the Mother has provided a formal letter explaining the circumstances of their situation from the organisation the Father attended for behaviour management, which was written by a professional who had "intimate knowledge" of their situation as she was involved in the women's side of the program which the Father attended for two years; > > (c) the Mother is currently participating in the NSW Government's Start Safely Program which supports women and children to relocate due to domestic violence. Through this program, the Mother receives rent each week to keep the Applicant and herself safe, having relocated several hours away from the Father's residence; > > (d) the Mother has been recognised as a primary victim of violence under section 19 and 20 of the Victims Right and Support Act 2013 (NSW) and has been awarded a Victims Services payment under that legislation.

4. On 19 September 2024, the Department of Foreign Affairs and Trade (Department) invited the Applicant to provide additional information to address the special circumstances that she had asserted were relevant to the application. The Department confirmed that it would not contact the non-consenting parent in relation to the Applicant's request for an internal review of the decision to refuse to issue an Australian travel document. On 27 September 2024, the Mother responded to the invitation indicating that she did not wish to apply for a family violence order due to fear of repercussions from the Father, and lodged further documents in support of her application.
5. On 29 October 2024, the Respondent affirmed the original decision not to issue an Australian passport to the Applicant (the Reviewable Decision), for the following reasons:

(a) The Father did not consent to the Applicant having an Australian passport/travel document. The Applicant could not be issued with an Australian passport under s 11(1)(a) of the Act; > > (b) The Applicant's parents have parental responsibility for the child under s 11(5) of the Act and there was no evidence provided to rebut the presumption that both the mother and the father have parental responsibility for the child, such as a valid court order removing parental responsibility on the part of the applicant's father; > > (c) There were no valid court orders permitting the Applicant to have an Australian passport/travel document, travel internationally or see a person outside Australia. The Applicant could accordingly not be issued with an Australian passport under s 11(1)(b) of the Act; and > > (d) the review delegate was not satisfied that there existed special circumstances under s 11(2)(a) of the Act to issue the Applicant a passport. In this regard, the review delegate considered relevant matters under the Australian Passports Determination 2015 (Determination), including letters of support outlining that a situation where family violence has been perpetrated by the father. However, the delegate found that s 10(3)(f) of the Determination was not enlivened in the circumstances as a copy of a family violence order was not provided and the delegate could therefore not be satisfied that the child should be issued a passport under the special circumstance in section 10(3)(f) of the Determination.

6. By application dated 29 October 2024, the Mother sought review of the Reviewable Decision in this Tribunal pursuant to section 50 of the Act.

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; 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(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. In these reasons for decision, references to 'T-Documents' are references to documents lodged with the Administrative Review Tribunal (the Tribunal) pursuant to s 23 of the Administrative Review Tribunal Act 2024 (the ART Act).

1. The Mother provided the following evidence, which was contained in the T-Documents:

(a) Child passport application form dated 12 June 2024, attaching: > > > (i) LNJD's birth certificate; > > > > (ii) Form B-8 noting: > > UNDER NO CIRCUMSTANCES IS THE FATHER OF [LNJD] TO BE CONTACTED AS WE HAVE RELOCATED DUE TO DOMESTIC VIOLENCE. > > DUE TO DOMESTIC VIOLENCE [LNJD] AND I HAVE BOTH RELOCATED. VIOLENCE WAS PRESENT IN THE RELATIONSHIP FROM THE BEGINNING OF MY PREGNANCY AND THIS IS THE REASON HE WAS NOT INCLUDED ON THE BIRTH CERTIFICATE. > > ATTACHED IS A NOTICE OF DECISION FROM J DUIGNAN, ACTING UNDER THE DELEGATED AUTHORITY OF THE COMMISSIONER OF VICTIMS RIGHTS. > > SEE VICTIMS RIGHTS AND SUPPORT ACT 2013 (NSW), VICTIMS RIGHTS AND SUPPORT REGULATION 2019 (NSW). > > THE NOTICE OF DECISION DETAILS THE ON GOING VIOLENCE AND REASONS FOR RELOCATING. > > DUE TO THE COERCIVE CONTROL THAT WAS PRESENT IN THE SITUATION AND OUR NO CONTACT I AM NOT ABLE TO GET CONSENT FROM THE FATHER. > > > (iii) Letter from Victims Services dated 31 January 2023 with Notice of Decision for Victims support for Mother, approving payment for recognition of domestic violence and the maximum amount of financial assistance available, for immediate needs including security items and relocation costs. > > (b) Additional documents requested by Department, including: > > > (i) Letter of support from Men and Family Centre dated 11 January 2023 confirming disclosures of domestic violence since April 2020 including most recently on 24 December 2022, and police reports in 2019 and 2020; > > > > (ii) Letter from NSW Department of Communities and Justice dated 9 March 2023 confirming approval for Rent Choice Start Safely payments for rental assistance on the basis of domestic violence; > > > > (iii) Letter from NSW Department of Communities and Justice dated 9 March 2023 confirming approval for Rent Choice Subsidy for victims of domestic violence; > > > > (iv) Details of last contact between LNJD and their Father: > > The last contact [LNJD] had with [their Father] was December 2023. I had to travel to [past residence location] (where [their Father] resides two streets away from my mother's residence) In order to visit my mother ...who was suffering from [a] terminal illness ... She has now passed away July this year. On the visit I agreed to meet with [their Father] so he could spend time with LNJD under my supervision. The time was cut short after [their Father]'s behaviour became inappropriate. > > This Included yelling and swearing at me, accusing me of things and general paranoid type behaviour. I had been trying to foster a relationship between LNJD and [their Father] after we relocated to a safe distance via the Start Safely Program (a Domestic Violence relocation scheme) a year prior. However this was the final Instance where I ceased my encouragement of that relationship due to [their Father]'s unmanageable, unsafe and erratic behaviour. I left with LNJD, as from my previous years of experience with [their Father] and his pattern of abusive behaviour, I was fully aware that things would continue to escalate which would have put both myself and LNJD In harms way. > > (c) Further additional documents, including: > > > (i) Details of NSW Police incident reports concerning domestic violence incidents in 2019 and 2020, and explanation of why the Mother had not sought a Family Violence Order; > > > > (ii) Application to NSW Police Force under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) dated 19 September 2024 for copies of the police reports for the domestic violence incidents in 2019 and 2020; > > > > (iii) Letter from local Community Legal Centre, Women's Domestic Violence Court Advocacy Services dated 23 September 2024 supporting the Mother's application for a passport for LNJD without the Father's consent, providing a detailed history of the domestic violence perpetrated by the Father, and the Mother's reasoning for not pursuing formal legal action against the Father, and relocating for safety reasons; > > > > (iv) Letter of support from the Mother's treating psychologist dated 24 September 2024; > > > > (v) Letter of support from a Homelessness service supporting Women and Children Experiencing Domestic and Family Violence dated 27 September 2024, confirming the Mother's assistance from 24 January 2023 to 18 April 2023 to obtain rental and victims support on referral, due to incidents of domestic violence indicating serious risk of harm.

2. The Mother provided the following evidence in addition to that contained in the T-Documents:

(a) Personal statement; > > (b) Letter from LNJD's daycare centre dated 31 July 2025, confirming no contact between LNJD and their Father during their enrolment from April 2023 to January 2025; > > (c) Primary school enrolment for LNJD; > > (d) Letter of support from LNJD and Mother's GP dated 21 August 2025, confirming no contact or involvement of the Father in LNJD's health or medical treatment; > > (e) Letter of support from a local medical practitioner and close friend of the Mother dated 4 August 2025, confirming no known contact or involvement of the Father from July 2023, when the Mother and LNJD first relocated to the area under a domestic violence relocation grant; > > (f) Letter from the Mother and LNJD's neighbour dated 1 August 2025, confirming no known presence of the Father at their residence; > > (g) Letter from LNJD's music teacher dated 5 August 2025, confirming no known responsibility, presence or interaction by the Father at LNJD's lessons or performances since February 2024; > > (h) Services Australia letter to the Mother dated 1 September 2025, confirming her 100% care for LNJD and receipt of Family Tax Benefit Part A, Family Tax Benefit Part B and Rent Assistance; > > (i) Child Support printout showing 100% care of LNJD by their Mother and 0% by their Father;

3. The Mother provided the Tribunal with written submissions, and was cross-examined during the hearing.
4. The Respondent relied on the T-Documents and additionally provided the Tribunal with a Statement of Facts, Issues and Contentions (SFIC). Both parties provided the Tribunal with oral submissions at hearing.

1. The factual circumstances outlined by the Mother in her evidence, both in writing and orally at the hearing, were not disputed. I have included them as Annexure A to these Reasons for Decision, as they are subject to the non-publication orders made pursuant to s 70 of the ART Act.

1. The Respondent submitted that on the basis of the presumption in Subdivision D of Division 12 of Part VII of the Family Law Act 1975, the Father had parental responsibility for LNJD. Section 69Q of the Family Law Act 1975 provides for a presumption of paternal parentage where the Mother was cohabiting with the Father from the period between 44 weeks prior to LNJD's birth and 20 weeks prior to their birth. Although there is no direct evidence to support that finding, the Tribunal infers from the Mother's evidence that this was the case, and this is further supported by the Mother's concession that the Father was, in fact, LNJD's father, irrespective of her choice not to name him on LNJD's birth certificate.
2. On the evidence before the Tribunal, the Mother and the Father therefore both have "parental responsibility" for LNJD under s 11(5) of the Act. There has been no order under the Family Law Act 1975 which would show that the Father no longer has parental responsibility for LNJD (under subsection 11(5)(a)(ii)). The Father was not informed of the application and did not consent to it, so the requirements of s 11(1)(a) of the Act are not met. There is no Court Order of the kind described in s 11(1)(b) in place, so the requirements of s 11(1)(b) are not met.
3. There is no basis for finding that the circumstances of s 11(2)(b), (c) or (d) are enlivened. What remains in issue for the Tribunal's determination is whether there are "special circumstances" pursuant to s 11(2)(a) of the Act.
4. 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. I will address subsections 10(3)(d) and 10(3)(f) below.

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

1. Section 10(3)(f) of the Determination provides a "special circumstance" where there a Family Violence Order has been issued against the non-consenting person. Pursuant to section 10(4)(c), the expression "family violence order" has the same meaning as in section 4(1) of the Family Law Act 1975, 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 no Family Violence Order issued against the Father, despite the Mother's evidence of family and domestic violence perpetrated by him. Her evidence and that of the various counselling and domestic violence services which assisted her, explained that the reason for this was because of the risk of retaliation and violence such an application would initiate.
3. The "special circumstance" under section 11(2)(a) on the basis of section 10(3)(f) of the Determination is therefore not enlivened.

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

1. In relation to section 10(3)(d) of the Determination, 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. 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 in the Explanatory Statement to the Determination, 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].
3. The Department of Foreign Affairs and Trade has published a policy in relation to the applications of section 10(3)(d) of the Determination (the policy). The Tribunal is not bound by the policy, but can take it into account, 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. Consistent application of policy by administrative decision-makers is desirable: Hneidi and Others v Minister for Immigration and Citizenship [2010] FCAFC 20 at [43]. The policy provides some guidance in relation to what constitutes a "substantial period" for determining "no contact" in relation to the special circumstance under s 10(3)(d) of the Determination, referring back to the Explanatory Statement to the Determination, and provides a definition for what is considered "contact", to include all forms of contact (for example in person, telecommunications, social media and any other avenue of communication), including unreciprocated contact, but excluding incidental contact.
4. The wording of the Determination requires that the substantial period of "no contact" occurs before the passport application is made. It was undisputed that the last contact between the Father and LNJD was in December 2023, and the application for a passport was made by the Mother on 13 June 2024. This constitutes a "no contact" period of 6 months.
5. The Explanatory Statement to the Determination specifically allows for discretion to be exercised in determining what is a "substantial period" of "no contact". Otherwise, the wording "in most cases" and "may" would not have been used in that explanation of the Determination's provision. Both "up to" and "may be less" indicate that a period of less than two years was clearly envisaged as still being capable of qualifying as a substantial period.
6. The domestic and family violence evidence provided by the Mother is not just relevant to the question of whether, pursuant to s 10(3)(f) of the Determination, special circumstances exist by way of a "family violence order" which has been issued against the non-consenting person. The history of domestic violence and coercive control perpetrated by the Father against the Mother and, by extension, LNJD, can be taken into account in considering whether the period of "no contact" between the Father and LNJD is a "substantial period". The quality of the contact, the circumstances in which it occurred, and the extent to which it was desired or initiated by parties to the contact, may be relevant. Although there are no specific reference to these considerations in the policy, the Tribunal is not restricted in its consideration of factors it considers relevant to its determination. The family violence and coercive control experienced from the Father is thereby a relevant consideration to s 10(3)(d) of the Determination.
7. Domestic violence services, psychologists and other medical professionals, and NSW Victims Services recorded a history of coercive control, intimidation, psychological abuse, verbal abuse, and physical violence by the Father, with threats and physical violence creating genuine and ongoing fears for safety of the Mother and LNJD. The Mother is now the subject of a 3 year grant from the State of long-term protective measures, as a victim of domestic violence. The evidence demonstrated that contact with the Father posed significant safety risks for the Mother and LNJD.
8. The last in-person contact between the Father and LNJD in December 2023 was marred by aggression, coercion and threatened violence, to the extent that the Mother cut that contact short and there has been no contact since. The undisputed evidence before the Tribunal was that the contact between the Father and LNJD in the period from January 2023 to December 2023 was arranged by the Mother for their child's perceived benefit, not because the Father sought such contact. The Father did not attempt to obtain access to his child through court proceedings or any other potential informal or formal avenues. There is undisputed evidence from multiple sources that the Father had not contacted or attempted to make contact with any of the organisations involved in LNJD's education, health or care, and had not been seen in the area where the Mother and LNJD had resettled, despite knowing their address from previously posting LNJD items. The Father had not attempted to contact the Mother by other means, once she blocked his phone number in December 2023.
9. The Mother's evidence demonstrates that a reasonable proportion of the family violence perpetrated against her and LNJD by the Father was through means of coercive control. Despite escaping the Father in January 2023 with the assistance of multiple State and community resources, the Mother still encouraged LNJD to have telephone contact with the Father. This can be viewed in the context of residual coercive control perpetrated by the Father against the Mother, even after she moved several hours away to escape his physical violence. Her evidence was that the telephone contact was instigated and arranged entirely by her, and it ceased when she chose to stop arranging it and blocked the Father's number, despite him being able to contact her by any other means. Had the Father had any real interest in exercising his parental responsibilities towards LNJD or maintaining a relationship with his child, he could have sought this contact. There is no evidence that he did so, whether through the Courts or otherwise.
10. The Tribunal therefore discounts the contact between the Father and LNJD in the period between January 2023 and their last contact in December 2023 as not constituting genuine, meaningful or real attempts by the Father to maintain contact with LNJD or exercise any form of parental responsibility. That period commenced when the Mother and LNJD fled the Father's home in December 2022 and relocated to avoid continued perpetration by him of domestic violence and coercive control. These are relevant circumstances with importance to LNJD's life. The Tribunal finds that in these particular circumstances of documented family violence and the consequent relocation of LNJD and the Mother, coercive control, and the failure of the Father to make any attempts at contact with Mother or LNJD after December 2023, there is a "substantial period" of "no contact" between the Father and LNJD.
11. Section 10(3)(d) of the Determination is therefore enlivened.

1. The 'special circumstances' referred to in section 11(2)(a) of the Act, as outlined at section 10(3)(d) 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 neither subsections of section 11(1) of the Act apply.
2. The Tribunal has discretion once section 11(2)(a) is enlivened, to decide whether or not to issue LNJD with an Australian Travel Document, being an Australian passport pursuant to s 6 of the Act.
3. The Respondent referred to the Explanatory Statement and the Explanatory Memorandum of the Australian Passports Bill 2004 and submitted:

...the objectives of the passport provisions are to protect children from international parental child abduction and to safeguard the rights of persons with parental responsibility. While the Determination provides for circumstances in which a passport may be issued without the consent of all persons who have parental responsibility, the circumstances are limited. Further, the Minister (and Tribunal) retains a discretion in relation to the issue of the passport and would not normally exercise powers under this section if it was inappropriate to do so (Explanatory Statement, p 47).

4. The Respondent referred to the power under s 11(3) of the Act to issue a declaration that the matter should be dealt with by a Court, as indicative of the purpose of the Act. The Explanatory Memorandum for the Act relevantly provides as follows (at [29]-[30]):

Disputes between parents to be dealt with by a court > > Subclause 11(3) will provide that if the Minister could only issue a passport in accordance with the exceptions in subsection (2), the Minister may declare that the Minister is refusing to do so because the Minister considers the matter should be dealt with by a court. For example, the Minister may make a declaration under this section if parents of a child disagree about the child travelling internationally. > > In approximately 25 cases annually, applicants seek to resolve a dispute with the child's other parent about whether their child should travel internationally through the administrative review process under the 1938 Act rather than through the courts. In these cases, officials with responsibility for administering the passport system are currently required to make decisions outside the policy and legislative framework established under the family law system. If the matter proceeds to the Administrative Appeals Tribunal (AAT), the Department, as the decision-maker, is the respondent whereas the parent who has refused consent is not represented. The new provision will remedy this anomalous position. New paragraph 48(b) will provide that the decision to refuse to issue an Australian travel document in relation to which a declaration under this subsection has been made is not reviewable under this Act's administrative review regime.

...even if the Tribunal were to be satisfied that it has a discretion to issue a passport to the Applicant, it ought not do so in circumstances in which [the Father's] consent has not been sought in relation to the application and his position is unknown. Given the Tribunal has found [the Father's] interests are affected and he has not been invited to apply to be joined to the proceedings, the Tribunal should refuse to exercise any discretion under subsection 11(2).

6. The Respondent submitted that although there was "no issue" with the Father's lack of awareness of the proceedings, because the Tribunal had determined not to exercise its discretion to give notice to him of the proceedings pursuant to s 21(3) of the ART Act, the Tribunal should take into account that "his side of the story was not heard". The Respondent did not dispute the Mother's evidence but said it was "not conclusive" that the Father hadn't tried to contact LNJD. However, the Respondent accepted that there was no "ongoing involvement" between the Father and his child.
7. The Tribunal takes into consideration the lack of procedural fairness afforded to the Father, in circumstances where his legal parental interests may be affected by the Tribunal's decision, but the Tribunal has determined not to exercise its discretion to make him aware of these proceedings. This discretion was not exercised because of the history of family violence and the evidence which demonstrated the likelihood that the Father would retaliate against the Mother, and instigate further attempts at family violence and coercive control. Any entitlement by the Father to procedural fairness in this Tribunal does not take precedence over the Mother or LNJD's safety.
8. The Mother gave evidence, which was not disputed, that she is studying at University and suffers from chronic illnesses which have meant that she has been on a disability support pension for over a decade. Her health had deteriorated following surgery and she experiences chronic pain. According to her, the part-time study she was undertaking in conjunction with mothering LNJD was "me at my maximum capacity". She wanted to obtain a passport for LNJD to take an overseas holiday, and believed that LNJD should not be "disadvantaged because of the actions of a violent father. [LNJD] is disadvantaged enough because of my situation". She had no intention of relocating overseas and had no known relatives overseas. I accept that evidence and find that there is no realistic risk of LNJD being the subject of international parental child abduction, in circumstances of the Mother's health, and where the Mother has already moved LNJD several hours away from the Father and he has not pursued his parental rights in relation to LNJD for a substantial period of time.
9. The Respondent submitted that there was no strong or compelling discretionary reason to issue LNJD with a passport pursuant to the Mother's application. The Tribunal disagrees that a "strong" or "compelling" reason is necessary for it to exercise the discretion afforded by s 11(2)(a) of the Act. The issue for determination is what is the correct or preferable decision in the circumstances. The Tribunal notes the AAT's remarks in S and Minister for Foreign Affairs (General) [2018] AATA 1083 at [41]:

The discretion ... is not, in my opinion, on the proper construction of the statute, confined to the question of protecting a child from abduction or protecting the rights of parents. It is clear that the welfare of the child is involved in the conferral of discretion when one looks at s.11(2)(b). That consideration is in my opinion of great importance to the resolution of these proceedings. Indeed, s.11(2)(b) seems to me to require a decision-maker to consider all the circumstances of the matter and not just those referred to in the explanatory memorandum as general objects of the section as a whole. > > The Tribunal, when looking at all of the circumstance of this particular matter, finds discretion should be exercised to grant the Applicant an Australian Passport.

10. There is a public interest consideration in not penalising a parent and their child for the violence and coercion perpetrated on them by the other parent. Many State laws have been amended to criminalise, or otherwise take into consideration, issues of coercive control, and the Commonwealth Attorney General has published "National Principles to Address Coercive Control in Family and Domestic Violence", to inform such considerations. The circumstances of these proceedings provide a realistic example of the negative repercussions on victims of such domestic violence, of governmental policies and legal responses which have not yet caught up with the realities of a perpetrator's impact on their victims. Here, the realistic fears of the Mother that initiating Court proceedings for parental responsibility of LNJD, or applying for a Family Violence Order, would result in further prolonged domestic violence and coercion from the Father, further disadvantages both her and her child in their daily lives, and restricts them from enjoying the entitlements and benefit an Australian passport would allow them.
11. The Department's policy, which provides guidance to decision-makers on the application of the Act and the Determination, and the discretions afforded to them under those statutory instruments, does not currently take into account the insidious nature of coercive control, the impact such conduct may have on a parent applying for a passport for their child in such circumstances, and the consequent disadvantages imposed by the legislative requirements. That does not prevent the Tribunal from taking such matters into account where relevant.
12. Taking into account the circumstances described above, the Tribunal finds that this is one of the "limited circumstances" in which its discretion should be exercised and the passport should be granted without the consent of the other parent. The correct or preferable decision is to set aside the Respondent's Reviewable Decision and to substitute it with an order that an Australian passport is to be issued to the Applicant.

1. The Tribunal sets aside the Respondent's reviewable decision of 29 October 2024 and substitutes it with a decision to issue an Australian passport to the Applicant.