Kakarla and Minister for Foreign Affairs

Kakarla and Minister for Foreign Affairs [2024] AATA 3547 (26 September 2024)
Division:GENERAL DIVISION
File Number: 2021/0830
Re:Hitansi Kakarla
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

AndBhanu Kakarla
OTHER PARTY

DECISION
Tribunal:Deputy President Britten-Jones
Date:26 September 2024
Place:Melbourne

The decision under review dated 17 December 2020 is set aside and substituted by a decision to issue an Australian passport to the applicant
......................[SGD]...................
Deputy President Britten-Jones
Catchwords
PASSPORT – Australian citizen refused a passport – where applicant is a child – where applicant is residing with maternal grandparents in India – consent for child to be issued with a passport refused by the father – where parents are separated and the mother lives in Australia and the father lives in India – where no court orders in relation to parental responsibility for child – whether exceptions apply for issue of passport to child without parental consent or court order – whether substantial period of no contact between child and non-consenting parent – whether evidence of family violence – whether there is a risk of abduction of child – whether child requires passport to continue to legally reside overseas – whether child’s welfare (physical or psychological) would be adversely affected if unable to travel internationally – whether discretion should be exercised – decision under review set aside and substituted by an order granting a passport
Legislation
Australian Passports Act 2005 (Cth) ss 7, 11
Australian Passports Determination 2015 (Cth) s 10
Citizenship Act 1955 (57 of 1955) (India)
Cases
S and Minister for Foreign Affairs (General) [2018] AATA 1083
Secondary Materials
Explanatory Statement to the Australian Passports Determination 2015 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
26 September 2024

The applicant is a child whose mother applied for a passport for her. That application was refused by a decision made by a delegate of the Minister for Foreign Affairs and was affirmed on internal review. The applicant’s mother has applied for review to the Tribunal pursuant to s 50 of the Australian Passports Act2005 (Cth) (the Passports Act). The father of the child has been joined as the Other Party. He opposes the application for a passport.
In these reasons, I will refer to the applicant as the daughter and the Other Party as the father. I will refer to the daughter’s grandparents as the maternal or paternal grandparents as the case may be.
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.
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.
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;
iv.   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;
(i)    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.
The Explanatory Memorandum[1] 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] Explanatory Memorandum to the Australian Passports Bill 2004 (Cth)
Contentions of the Mother that the passport should issue
The mother contends that the decision under review should be set aside on the following grounds:
(a)the child’s welfare would be adversely affected if the child were not able to travel internationally – s 11(2)(b) of the Passports Act;
(b)Special circumstances exist pursuant to s 10(3)(d) of the Determination because the father had no contact with the child for a substantial period before the application for a passport was made;
(c)Special circumstances exist pursuant to s 10(3)(i) of the Determination because there is a need for the child to travel internationally and because the child requires a passport to continue to legally reside overseas;
(d)Special circumstances exist pursuant to s 10(3)(g) of the Determination because there is evidence of family violence;
(e)the discretion to issue a passport should be exercised because of the special circumstances and/or because of the child’s welfare;
Contentions of the Father opposing the issue of a passport
The father does not consent to the child having a passport and says that the decision under review should be affirmed. There is no dispute that the father is a person with “parental responsibility” for the child and that therefore s 11(1)(a) of the Passports Act is not satisfied.
In response to the contention relevant to s 10(3)(d) of the Determination, the father says that he had contact with the child in May 2018 which was 18 months before the mother made the application on 22 November 2019. The father contends that s 10(3)(d) is not made out because 18 months is not a “substantial period” which, according to the Explanatory Statement for the Determination, is considered to be up to two years. Further, the father contends that the mother prevented him from contacting the child during the relevant period and that he made multiple attempts to contact the child by telephone.
The father denies that there is any evidence of family violence.
In response to the contention relevant to s 10(3)(i) of the Determination, the father says that the phrase “need for the child to travel internationally” should not be construed to include a circumstance where the child’s psychological health would be adversely affected if the child were not able to travel internationally. In relation to the second limb that “the child requires a travel document to legally reside overseas”, the father says that this is not supported by the evidence.
In relation to s 11(2)(b) of the Passports Act which provides that the Tribunal may issue a passport if it is “satisfied that the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally”, the father accepts that, on the basis of the medical report from Dr Sheridan, s 11(2)(b) is satisfied. However, he contends that the Tribunal should not exercise its discretion to issue a passport.
The father contends that even if special circumstances under s 10 of the Determination are established, the Tribunal ought not exercise its discretion to issue a passport to the child because the return of the child to Australia would undermine the current custody proceedings in India, which would be contrary to the objectives of the child passport provisions under the Passports Act, namely, to protect the rights of parents.
Background Facts
The following background facts are uncontentious, and I have expressed them in neutral terms where they are the subject of dispute. I will examine any disputed facts later in these reasons.
The mother and father were married in India on 4 December 2011 and shortly thereafter went to live In Brisbane. The father had been living in Australia since 2003 and had obtained permanent residency and a master’s degree from an Australian university. He became an Australian citizen in early 2011 before the wedding and obtained an Australian passport. He worked as an employee for some years in Australia before starting up businesses with a partner from 2008.
The mother is an Indian citizen and became a permanent resident of Australia in 2013. She and her husband lived in Brisbane in rental accommodation until they bought a house in 2014.
The daughter was born on 16 October 2014 in India.[2] She became an Australian citizen by descent on 17 March 2015.[3] On 30 March 2015 an overseas passport application for the daughter was lodged with the Department of Foreign Affairs and Trade (DFAT). The passport was issued to the daughter on 13 April 2015 and was valid until 13 April 2020. She is registered as an overseas citizenship of India (OCI) cardholder[4] under The Citizenship Act 1955 (57 of 1955) (India).
[2] T5, p 37.
[3] T10, p 56.
[4] See exhibit 23 and ST 8.
The mother, father and daughter went back to Australia in May 2015 and resumed living in their home in Brisbane. They stayed there for about the next two years.
The mother and the daughter went with the father to India in about July 2017. They lived with the paternal grandparents. When the daughter started school, they moved in with the sister of the father. In November 2017, the daughter and her mother moved in with the maternal grandmother because she was very ill. They stayed there until March 2018.
On 16 March 2018, the father through his lawyers wrote to the mother stating that she was his legally wedded wife and calling upon her to return to the marriage.[5] The mother says she did not receive that letter and did not see it until later.
[5] ST2, p 27 to 31.
In March 2018, the mother and daughter moved back in with her parents-in-law and the father and stayed there until the end of May 2018.
The last contact of the father with his daughter was on 30 May 2018 when the mother and daughter left the paternal grandparents’ house and went to live 30 kms away with the maternal grandparents. The mother took a job as an Assistant Professor in India.[6]
[6] T10 p 57.
The daughter went to school in India from about June 2018.
The father went back to live in Australia in August 2018 (but the mother did not know that at the time). He stayed in Australia until about October 2019 when he returned to India.
The mother was granted a visa by the Department of Home Affairs on 13 October 2018 which confirmed her permanent residency.[7]
[7] ST2 p 120.
On 5 March 2019,[8] a petition dated 17 January 2019 (254 of 2019) was issued in an Indian court for custody of the daughter.[9] These proceedings are still on foot and remain unresolved.
[8] Exhibit 12.
[9] T5 p 27 and annexure A to father’s affidavit of 15 June 2022.
On 29 July 2019, the mother sent an email to the father saying that “Its been almost 1 year since you left India” and “you didn’t even contact us since May 30^th 2018.”[10]
[10] T10 p 55.
On 14 August 2019, the mother through her lawyers wrote to the father requesting him to surrender the daughter’s Australian passport so as to allow the mother and daughter to travel to Australia.[11]
[11] ST2 p 32 to 34.
On 2 September 2019, the father through his lawyers responded to the mother’s lawyers advising that the father does not possess the daughter’s Australian passport and referring to the proceedings in India.[12] Lawyers for the mother responded on 30 September 2019 asking for the father to execute an Australian passport application for the daughter.[13] On 14 October 2019, lawyers for the father responded refusing to execute the form for the passport.[14]
[12] ST2, p 35.
[13] ST2 p 37.
[14] ST2 p 40.
On 22 November 2019 the mother made application to DFAT for a passport for her daughter.[15]
[15] ST2 p 15 to 26.
On 19 December 2019, the father filed two interlocutory applications seeking visitation rights[16] and for the daughter to not be dislocated from the jurisdiction.[17] Affidavits supporting these applications were filed by the paternal grandfather.[18]
[16] Annexure B to the affidavit of father dated 15 June 2022.
[17] Annexure D to the affidavit of father dated 15 June 2022.
[18] Annexure B and D of father’s affidavit dated 15 June 2022.
On 19 January 2020, the father lodged a statement with DFAT advising that he did not consent to a passport being issued in his daughter’s name.[19]
[19] T8, p 46.
On 27 January 2020, the father withdrew the petition for conjugal rights in 576 of 2019.[20] On 7 February 2020, the father issued a petition to dissolve the marriage.[21] On 3 March 2020, the petition for conjugal rights in 576 of 2019 was dismissed based on the withdrawal.[22]
[20] Exhibit 15.
[21] Exhibit 16.
[22] Exhibit 14 p 25, exhibit 15, exhibit 16.
On 20 March 2020, a delegate of the Minister for Foreign Affairs and Trade refused to issue an Australian passport to the daughter.[23]
[23] T9, p 47.
On 6 May 2020, the mother provided submissions in support of her application to review the passport refusal decision.[24]
[24] T11, p 61 to 65.
In October 2020, the father, through his lawyers, sent a gift package including a mobile phone to the daughter.[25]
[25] T13, p 70.
On 10 September 2020, the father filed a petition in the High Court 19455 of 2020 seeking visitation rights through an agency.[26]
[26] Exhibit 15.
On 20 October 2020, the father provided details of his objection to the passport application by letter to DFAT.[27] On 17 December 2020 the mother’s application for internal review was refused.[28]
[27] T13, p 70 to 72.
[28] T14, p 88 to 93.
On 15 February 2021, the mother applied to the Tribunal for review of that decision.
The mother returned to Australia in July 2021 in order to keep her status as a permanent resident in Australia. She lives in Perth and is employed by the Western Australian government. The daughter remains living in India with the maternal grandparents.
On 2 July 2021, the writ petition in 19455 of 2020 was dismissed as withdrawn.[29]
[29] Exhibit 10, Exhibit 14, p 5.
On 28 February 2022, the mother filed a counter to the custody petition in 254 of 2019.[30]
[30] Annexure C to father’s affidavit of 15 June 2022.
On 25 March 2022, two interlocutory applications brought by the father (417 and 414) in 254 of 2019 for visitation rights and non-dislocation orders were dismissed.[31]
[31] Exhibit 10 Applicant’s material pp 6 to 18
On 27 April 2022, the father issued a civil revision petition appealing in the High Court seeking to set aside the 25 March 2022 order in 417 and seeking interim visitation rights. The father filed an affidavit on 25 April 2022.[32]
[32] Annexure F to father’s affidavit of 15 June 2022.

On 6 May 2022, the father issued a civil revision petition in the High Court seeking to set aside the order dated 25 March 2022 in 414.[33] The High Court made an interim direction not to dislocate the child until 15 June 2022.[34]
[33] Exhibit 10, Annexure G to father’s affidavit of 15 June 2022.
[34] Ibid.
On 15 June 2022[35] the civil revision petition was adjourned.
[35] Exhibit 17.
In September 2022, Dr Lorraine Sheridan conducted a welfare assessment of the daughter by video and prepared a report dated 22 September 2022.
In October 2022, the father came to the daughter’s school to see her.
On 29 August 2023, the Civil Revision Petition brought by the father was dismissed.[36] The Petition 843 related to visitation rights. The Petition 844 related to a restraint order to prevent the daughter from dislocating from the jurisdiction of the court. The Petitions challenged the earlier dismissals dated 25 March 2022 relating to the petition 254 of 2019. The result was that both petitions were dismissed. The petition for visitation rights was dismissed because daughter was in the custody of the maternal grandparents and not the mother. The petition for a restraint order was dismissed because there was no pleading or proof that the child’s retention in India would be in the child’s welfare.
[36] Exhibit 13.
The mother visited her daughter in India from September to November 2023.
On 27 October 2023, the father filed new interlocutory applications in the Family Court proceedings 254 of 2019 for visitation rights and that the daughter not to be dislocated from the jurisdiction.[37]
[37] Affidavit of the mother dated 24 July 2024.
On 6 March 2024, the father applied to join the maternal grandparents.[38]
[38] Affidavit of the father dated 24 July 2024.
Evidence from the Mother
The mother set out her reasons for requesting a passport for her daughter in her letter to DFAT dated 22 November 2019:
(a)In July 2017, the mother travelled to India with the father and daughter for the wedding of the father’s cousin. She had thought that they would return shortly after 30 August which was her husband’s birthday. On 27 August, she was suddenly informed that her daughter was going to commence her schooling at Hyderabad, near where her husband’s sister lives. Since then, she was forced to stay in her sister-in-law’s house for the purpose of doing household chores and looking after the children. Her husband and his family “harassed, tortured, worried me and blamed me in many ways”.
(b)The maternal grandmother became unwell in November 2017 and the mother pleaded with her husband and his family to allow her to visit. After many requests, the family allowed her to visit her mother for a day. The maternal grandmother’s health was very bad and she became unconscious on the day that she was there. It was on this day that the mother’s husband called and demanded her to come home. She pleaded with him to allow her to stay and he abused her and accused her in the most vulgar language. The husband and the paternal grandfather threatened her and her family that there would be dire consequences if she did not come home. She stayed with the maternal grandmother because she was unable to leave her in such a bad condition. Thereafter, her husband’s family spread false stories against her. Eventually, after the uncles and aunts got involved, she returned with her daughter to her husband’s parents’ house on 26 March 2018.
(c)The mother and her daughter were abused and mistreated in many ways by her husband and his family until they forcefully threw her out of the house with her daughter on 30 May 2018. She and her daughter went back to the maternal grandparents to leave.
(d)After 30 May 2018 her husband never tried to contact the mother or the daughter. He never tried to visit her or speak to her, not even on her birthday on 16 October in 2018 and 2019. The mother arranged for the daughter to send a voice message to the father on his birthday on 30 August 2018 but he did not reply. She has not changed her phone number or her address.
(e)The mother came to know that the father had left India in August 2018 and stayed in Australia. He took the daughter’s passport and the mother tried contacting his family through relatives to get the passport back.
(f)The mother became aware in March 2019 that her husband’s father had filed a case for custody of the daughter. In June 2019 she received another case filed against her directing her to live with her husband.
(g)In June 2019 the mother sent her husband an email asking him to send her daughter’s passport but he did not reply so she then sent a notice through an Australian solicitor. He replied saying that she was lying and that the passport was with her. She sent another notice through a lawyer requesting him to sign so that a new passport could be issued but he refused. The daughter has the right to live in Australia as she is an Australian citizen. The father wants to block her in India so that she would lose her permanent residency in Australia.
(h)The mother wants her daughter to go to school in Australia as she has turned five years old. She requests that her daughter be granted a passport.
The mother obtained an expert from a forensic psychologist, Dr Lorraine Sheridan. She conducted a clinical interview with the daughter via video which lasted two and a half hours. The daughter speaks basic English but an interpreter was present for the duration of the interview.
By way of general background, Dr Sheridan noted the following:
Ms Pinnamaneni married Hitansi’s father in 2011. Ms Pinnamaneni was aged around 25 and her husband was aged around 31 at the time of the wedding. The couple separated in 2018. Until 2017 they had been living in Brisbane. Hitansi’s father was an Australian citizen at this time. Ms Pinnamaneni obtained Permanent Residency in 2013 and renewed it in 2018. Hitansi is a citizen of Australia. The marriage was an arranged marriage and it has been arranged in India. Both Ms Pinnamaneni and her husband are Hindu.
When living in Australia, Hitansi’s father owned several businesses. In July 2017 the family visited India to attend a family wedding. Hitansi’s father did not wish to return to Australia whereas Ms Pinnamaneni did want to return. Ms Pinnamaneni feels that her husband and his family took her and Hitansi to India in order to keep them there permanently. Ms Pinnamaneni describes her in-laws as “very controlling and demanding”. She said that they wanted their son to stay in India. He is their only son. Ms Pinnamaneni said that the controlling and abusive nature of her in-laws was the reason why her marriage ended in May 2018. She said that she was forced to stay in her sister in-law’s house and was made to take care of children, complete all the household tasks, and help her sister in-law set up a business. Ms Pinnamaneni said she was tricked and she had fully expected that they would be returning to Australia.
In November 2017, Ms Pinnamaneni’s mother was very unwell. Ms Pinnamaneni said that she had to make repeated pleas to be allowed to visit her mother. She said that whilst she was taking care of her mother, Hitansi’s father and his family repeatedly insulted and threatened her as they wanted Ms Pinnamaneni to return to them and continue her unpaid work for them. They also spread false rumours about Ms Pinnamaneni. Other family members became involved and in March 2018 Ms Pinnamaneni and Hitansi were taken back to the house of Ms Pinnamaneni’s in-laws. Ms Pinnamaneni said that she and Hitansi were physically and emotionally abused by her husband’s family. In May 2018 Ms Pinnamaneni and Hitansi were thrown out of the in-laws’ home and they moved in with Ms Pinnamaneni’s parents. Ms Pinnamaneni took a job as an Assistant Professor. She returned to Australia in July 2021 in order to keep her status as a Permanent Resident of Australia.
Dr Sheridan expressed the opinion that the daughter meets the criteria for Major Depressive Disorder and noted that:
Hitansi said that she cries at least three times a day every day and always feels sad. She said she sometimes feels that she has no hope and then she feels empty and tired and scared. Hitansi said that she feels particularly sad when she feels unwell. She said that she has had to go home from school a few times because of stomach pains. She said this was made worse because her mother did not pick her up and all of the other children in her school have a parent pick them up when they are unwell. Hitansi said this made her feel very different and lonely. Hitansi said when her mother is not with her she feels very sad and tired and feels like crying all the time. She said that sometimes she hugs her grandma and pretends that her grandma is her mother but she still feels sad.
Dr Sheridan recorded the daughter’s views as follows:
Hitansi said that she has some memories of Australia but was very young when she left. She said that she very much wants to see the Australia Day fireworks and also go to an animal park and see baby kangaroos. Hitansi said she had friends in Australia when she was little. She said she would miss her friends in India if she moved to Australia to be with her mother but “I would talk to them on Whatsapp”. She said she would also miss her grandma and grandad but again would talk to them on social media apps and via video calls. She said she wants to come to Australia so that she and her mum can create a lovely garden and that she and her mother planted lots of things together in India. Hitansi also said that she wants to swim in Australia because she did lessons in an Australian pool from the age of eight months and is very good at swimming.
Hitansi said the first thing she will do when she sees her mother again is hug and kiss her for a long time. She said the three main reasons she wants to come to Australia are so she can spend time with her mother, go and watch the Australia Day fireworks with her mother, and sleep next to her mother.
Hitansi said she is very worried about not getting a passport. She said this worry is always there in her mind. When I asked Hitansi about how she would feel if she was getting ready to come to Australia she sat up and smiled widely and visibly brightened. Her speech became louder and faster and she said “It would be like going to a magical world”. She said she loves unicorns and other magical animals but she would rather have her passport than a unicorn.
Dr Sheridan concluded as follows:
I am of the view that Hitansi is experiencing major depressive disorder in reaction to being separated from her mother. This is impacting her day to day activities, her education, and her general wellbeing. It is my opinion that Hitansi’s psychological welfare would be adversely affected if she is not able to travel internationally and that she would thrive if she were allowed to reunite with her mother in Australia.
The father did not require Dr Sheridan for cross examination and accepts the opinion expressed by Dr Sheridan at the conclusion of her report.
The mother gave oral evidence at the hearing as follows:
(a)She has applied for a passport for her daughter because she wants her to come back to Australia to be educated and to live with her. Her daughter is an Australian citizen and is currently residing illegally in India because she does not have a passport which is required for the holder of an OCI card.
(b)She is worried about her daughter because she is losing weight and missing her mother. The daughter’s education and health will be better if she came to Australia.
(c)She married her husband in December 2011 in India and they went to live together in Brisbane where they rented, until they bought a house together in 2014. Under cross examination, she agreed that it was the father who had wanted to live in Australia after getting married because he was already living there. She never thought the move to Australia was temporary and she thought they were going to live there permanently.
(d)Their child was born on 16 October 2014 in India. In May 2015 she returned to Brisbane with her husband and daughter.
(e)In July 2017, they went to India to attend the wedding of her husband’s cousin. She thought that they were coming back in two or three months having talked about it with her husband. She later realised that his plan was to keep her there and she was shocked that a school was chosen for her daughter. At first they lived with her parents in law and then they moved to her sister in law’s house when the daughter started school.
(f)Under cross examination she said that the father did not tell her in 2017 that he wanted to move back to India. He never told her that they were moving back to India permanently. She never agreed to move back permanently and she feels she was tricked into returning there.
(g)In November 2017, she became aware that her mother was sick and had suspected cancer. She begged her husband and his family to let her go to be with her mother and after a while they let her go. She and their daughter went to stay with her parents but the mother was not doing very well and became unconscious and needed to be hospitalised. Her husband called and said that she had to come back straight away and threatened her. She explained the situation to him and he became very angry and gave her strict warnings to come back.
(h)Under cross examination she said that she never planned to not return and that it was not true that she said that she would commit suicide. She did not go back to her sister-in-law’s house because she was so angry. The father did not try to contact her or her daughter by phone but a meeting was arranged with the elders after her father called the father’s uncle. After the meeting with the elders, she decided to go back with her daughter to the parents in laws’ house. She denied ever receiving a letter dated 16 March 2018[39] which she only became aware of later.
[39] ST2, p 27.
(i)Then in March 2018, she went back to her parents-in-law and stayed there until the end of May with her husband. She thought they could patch things up and she wanted to try again. It is not easy for a separated mother and child in India.
(j)From March until May 2018 she felt that she was ‘standing on thorns’ and it was very hard. Her husband and family didn’t want her to get a job but they found out she had a work interview and became very angry. Her husband and his family yelled at her and scolded her. One night they were very angry with her and pushed her outside of the house. She pleaded to be let back in. The daughter was crying and then they pushed her daughter outside as well. After waiting some time and pleading to be let back in, she and her daughter left to go to her parents’ house.
(k)Under cross examination she agreed that, although she used the word ‘tortured’ in her passport application letter, she was not physically harmed by the father and he was never violent towards her. However, she did say that the father’s mother shouted at the daughter and bit her, but she could not remember how many times or when this happened.
(l)She and her daughter stayed at her parents’ house until she left to go back to Australia in July 2021. In that three-year period she worked in India at an engineering college. Her daughter went to school from June 2018. Her husband never contacted her or her daughter. In August 2018, she arranged for her child to call her husband for his birthday and she left a message to which he did not reply. She had no contact with her husband for over three years until on 16 October 2020 when her husband attempted to video call the daughter. On that day the husband arranged for his lawyers to take a gift package including a phone to her daughter. She was at work at the time, but her parents told her that when the father called to speak on the phone the daughter became scared and did not speak to him. That was the first contact the father had attempted to make since May 2018.
(m)She became aware that her father-in-law had issued a petition in court in about March 2019. Her father-in-law was seeking custody of the daughter. There were numerous attendances at court but the father never attended. It was always the father-in-law but he did not speak to her. Any discussions were had between the lawyers. Under cross examination she said that she never stopped the father from contacting his daughter and that she would have expected him to come to the house or the school. She said that if the court had ordered him visitation rights then she would have obeyed the order but she was leaving it up to the lawyers once the court proceedings started.
(n)On 29 July 2019, she sent an email to her husband saying that “it’s been almost one year since you left India… and you didn’t even contact us since May 30th 2018.”[40] She wrote this email after finding out from the father’s friend’s wife that the father had gone to Australia. She asked for him to send her daughter’s passport. She got no response to this email.
(o)On 14 August 2019, her brother in Australia helped her to engage lawyers to write and ask for the passport. The father did not agree so she applied for a passport in November 2019.
(p)She came back to Australia in July 2021 to fight for her daughter’s passport and to save her permanent residency. She applied for a job in Perth which she got with the Western Australian government.
(q)On a day before the daughter’s birthday in October 2022, the father came to her school with someone who was taking a video. The daughter said that she was shaking and shivering and felt that he was a stranger.
(r)In 2023, she returned to India to visit her daughter from September until November. It was very hard when she had to leave her daughter.
(s)If the daughter gets a passport, then she will bring her daughter to Australia. She would let the father visit because she knows it is common in Australia for parents to have visitation rights. If the court in India granted shared custody she would comply with the orders.
[40] T10, p 55.
The evidence from the father
The father denies any inappropriate conduct towards the mother. He says that it was always their intention to return to India and not to live in Australia permanently. He and his wife agreed to return to India permanently in 2017. He did not abuse his wife when she asked to stay with her sick mother in November 2017. He asked if he could pick up his daughter, but the mother refused and threatened to commit suicide. The reason he did not go and get his daughter was because the mother had threatened to commit suicide. He made some calls to the mother but she did not respond. He wanted his wife and daughter to return home to him but his wife refused so he arranged a formal notice to be sent to her in March 2018. As a result of this notice, she and the daughter returned home. There was never any physical or mental abuse by him or members of his family. The wife left voluntarily with their daughter without telling him or his family on 30 May 2018. He was very worried and was going to call the police until he found out through relatives that she had gone to her parents’ house. He called her many times and sent her a text message asking her to return home with their daughter. She refused and so he stopped attempting to contact her.
The father returned to Australia in August 2018 because he had work commitments with his businesses. He stayed working in Australia until October 2019. Whilst he was away, the paternal grandfather commenced proceedings in India on his behalf for custody of the daughter. The father commenced those proceedings for the welfare of the daughter and because he wanted to see her. At first he wanted his wife and daughter to come back and live with him in their family home. After it became apparent that their relationship was over, he wanted visitation rights and an order preventing the daughter being taken to Australia whilst the Indian proceedings were on foot.

When he returned to India in October 2019, he made no attempt to contact the mother or the daughter because his lawyers advised him not to due to the court proceedings. He pursued his rights to see his daughter by continuing to prosecute the proceedings. In October 2020, he instructed his lawyers to take a gift to the daughter for her birthday which included a mobile phone so she could speak to her father. In about September 2021, he met the mother’s lawyers and asked to see his daughter at a mutual place but they did not agree. He did not see his daughter until her birthday in October 2022 when he visited her at school. She was very shy and unwilling to talk to him or take gifts from him. She later accepted some chocolates from him. In April 2024, he visited his daughter’s school but was unable to see her.
He never had the passport of his daughter and he believes that his wife must have lost it. He refused to consent to a new passport being issued for his daughter because he knew that his wife would take her to live in Australia with her. In January 2019, he commenced proceedings in India through his father because he was in Australia at that time.
He believes that his wife wants to undermine the Indian proceedings by taking their daughter to Australia. He wants his daughter to remain in India and for him to have visitation rights until the Indian proceedings are resolved. If they are resolved against him then he would not prevent his daughter from getting a passport and returning to Australia. Despite accepting the report of Dr Sheridan, he believes that his daughter is doing well at school and that she should remain in India where he lives and both sets of grandparents live.
The father still has business interests in Australia and he expects to travel there periodically in the future. The last time he was in Australia was for a period of eight weeks from November 2023 to January 2024. He spent about five weeks in Australia in late 2022 and about twelve weeks in 2023.
The Petition for Custody – action no, 254 of 2019
On 20 February 2019, the paternal grandfather filed proceedings 254 of 2019 which were dated 17 January 2019. The first hearing date was 9 April 2019. The paternal grandfather was named as the petitioner and he signed a verification that the facts stated therein were true. The petition sought permanent custody of the daughter to the petitioner.[41] The Petitioner submitted :
[1] The Petitioner is the father in law of the Respondent and father of the Respondent husband … who is presently residing in Australia.
[19] The Petitioner son is working in abroad …
[41] Exhibit 15.
On 29 August 2019 the mother filed a Counter noting that “the present petition is pressed into service by the minor girl’s paternal Grandfather, as of GPA to the Petitioner”.
On 19 December 2019, the father commenced proceedings seeking visitation rights by interlocutory application 417 of 2019 in 254 of 2019[42] and for the daughter to not be dislocated from the jurisdiction by interlocutory application 414 of 2019 in 254 of 2019.[43] The affidavits in support of this petition were filed by the grandfather.[44]
[42] Affidavit of father 15/6/22 Annexure B
[43] Affidavit of father 15/6/22 Annexure D
[44] Annexure B and D of father’s affidavit 22/6/22
On 28 February 2022, the mother filed a counter to the custody petition in 254 of 2019.[45]
[45] Annexure C of father’s affidavit 22/6/22
On 25 March 2022, the two interlocutory applications (417 and 414) in 254 of 2019 for visitation rights and non dislocation orders were dismissed.[46]
[46] Exhibit 10 Applicant’s material pp 6 to 18
On 27 April 2022, the father issued a civil revision petition appealing in the High Court seeking to set aside the 25 March 2022 order in 417 and seeking interim visitation rights. Father filed an affidavit on 25 April 2022.[47]
[47] Annexure F to father’s affidavit 22/6/22
On 6 May 2022 the father issued a civil revision petition in the High Court seeking to set aside the order dated 25 March 2022 in 414.[48] The High Court made an interim direction not to dislocate the child until 15 June 2022.
[48] Exhibit 10 and annexure G in father’s affidavit 22/6/22
On 29 August 2023, the Civil Revision Petition brought by the father was dismissed.[49] The Petition 843 related to visitation rights. The Petition 844 related to a restraint order to prevent the daughter from dislocating from the jurisdiction of the court. The Petitions challenged the earlier dismissals dated 25 March 2022 relating to the petition 254 of 2019. The result was that both petitions were dismissed. The petition for visitation rights was dismissed because the daughter was in the custody of the maternal grandparents and not the mother. The petition for a restraint order was dismissed because there was no pleading or proof that the child’s retention in India would be in the child’s welfare.
[49] Exhibit 13
On 27 October 2023, the father filed new interlocutory applications in the Family Court proceedings 254 of 2019 for visitation rights and that the daughter not to be dislocated from the jurisdiction.[50]
[50] Applicant affidavit of 24 July 2024
On 6 March 2024, the father applied to join the maternal grandparents where the daughter is living.[51]
[51] Father affidavit 24/7/24
In addition to these ongoing proceedings, there were two other sets of proceedings which are no longer on foot.
The Petition for Restitution of Conjugal Rights – action no. 576 of 2019
On 21 May 2019, the father though the paternal grandfather (as the holder of a power of attorney) filed proceedings 576 of 2019 which were dated 10 May 2019. The first hearing date was 28 June 2019. The petition sought restitution of conjugal rights.
On 18 October 2019 the mother filed a court document in 576 of 2019 submitting that she and her daughter were willing to join the father.[52]
[52] Exhibit 20
On 27 Jan 2020 father withdrew petition for conjugal rights in 576 of 2019.[53]
[53] Ex 15
On 7 February 2020, the father issued a petition to dissolve the marriage.[54]
[54] Exhibit 15
On 3 March 2020, the petition for conjugal rights in 576 of 2019 was dismissed based on the withdrawal.[55]
[55] Exhibit 14 p 25 and exhibit 15 and exhibit 16 (final page)
Petition for Visitation Rights in the High Court – action no. 19455 of 2020
On 10 September 2020, the father filed a petition in the High Court 19455 of 2020 seeking visitation rights through an agency.[56]
[56] Exhibit 15.
On 2 July 2021 the writ petition in 19455 of 2020 was dismissed as withdrawn.[57]
[57] Exhibit 10, Exhibit 14, page 5.
Consideration
The prohibition in s 11(1) of the Passports Act against issuing a passport to the daughter in the absence of consent from both her 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.
There is no dispute that Dr Sheridan’s report establishes that the daughter’s welfare would be adversely affected if the child were not able to travel to Australia to be with her mother. Consequently, the prohibition does not prevent the issue of a passport to the daughter if there are discretionary grounds in favour of doing so. In exercising my discretion, I would need to consider all the relevant facts including surrounding circumstances. Some of the facts I would take into account are facts relied upon under the claimed special circumstances in subsections 10(3)(d), (g) and (i) of the Determination.
An important circumstance in this matter is that, despite the father and the child being Australian citizens, they are both currently living in India. The mother is a permanent resident of Australia and wishes to bring the daughter back to Australia so that she can enjoy all the rights and benefits of being an Australian citizen. A common case where there may be a threat of abduction would be where the family is living in Australia and there is a risk that one of the parents will remove the child from Australia without the consent of the other parent. That would amount to an abduction. In this case, there is no prospect of an abduction. The meaning of abduct from the Macquarie Dictionary is to carry off surreptitiously or by force, especially to kidnap. The Shorter Oxford English Dictionary says abduct is to “lead or takeaway (a person, esp. a woman or child) by illegal force or fraud.” The Chambers Dictionary defines abduction as “the carrying away esp of a person by fraud or force.”
In my view, if the daughter was willing to travel back to Australia with her mother then that would not amount to an abduction. It follows that the statutory object of protecting a child from abduction is less relevant.
As for the second object relating to the rights of the parents, it seems to me that neither of the parents have any particular rights that should be considered in preference to the other as part of the objects. The father says that he has commenced proceedings in India and that visitation and custody rights will be determined by the Indian court. He says that the mother is seeking to undermine the Indian proceedings by applying for a passport to allow the daughter to travel outside of the Indian jurisdiction. The mother says that the daughter is an Australian citizen who should be able to return to her country of citizenship. She has commenced these proceedings for a passport to enable that to happen. At this stage, neither of the parents has any rights arising from a court or tribunal. This is a very difficult case because the mother and the father live in different countries, but both want their daughter to live with them. Having said that, this is a case about a passport application rather than custody or visitation rights.
The mother and the father give divergent accounts of many relevant events. It is not necessary to make findings with respect to all the divergences but some of them are very important. For example, if it is found that the mother and father went to live in Australia permanently and that there was never any plan to return to live in India, then that would favour exercising my discretion to grant a passport so that she can return home. A related question is whether the return to India at the time of the wedding of the father’s cousin in 2017 was a permanent move agreed between the parents. With respect to these particular examples, there is significant objective evidence which supports or at least is consistent with the mother’s case that she and her husband moved to Australia permanently in 2011 and that they never agreed to return to India permanently in 2017 or at any other time:
(a)At the time of the wedding in 2011, the father was an Australian citizen who had lived in Australia since 2003 and who operated significant businesses in Australia. By agreeing to marry her husband, the mother agreed to live with the father at his home in Australia.
(b)After the wedding, the father continued to live in Australia and the mother joined him. The mother became a permanent resident in 2013 which was confirmed in 2018. The mother and father lived in Brisbane and bought a home in which they lived from about 2014.
(c)After the birth of the daughter in India in October 2014, they returned to live together as a family in Australia.
(d)The daughter was registered as an Australian citizen by descent on 17 March 2015.[58] On 30 March 2015 an overseas passport application for the daughter was lodged with DFAT. The passport was issued to the daughter on 13 April 2015 and was valid until 13 April 2020.
(e)The mother, father and daughter lived together as a family in Brisbane until July 2017 when there was a family wedding in India.
(f)When the mother, father and daughter went to India in July 2017, they still owned the family home in Brisbane and they did not purchase or secure a family home for themselves in India. Rather, when they arrived in India they lived with the paternal grandparents and then with the father’s sister. The father maintained significant business interests in Australia where he lived from August 2018 until October 2019. The family home in Brisbane was not sold, nor was the Volkswagen SUV which had been bought in 2013. The father did not tell the mother that he was returning to live in Australia in August 2018.
[58] T10, p 56.
The father gave evidence that he and his wife had always planned to return to India to live and that they decided that they would return permanently in July 2017. The mother denies this and says that she thought she was moving to Australia permanently when she married him. She said that the father never mentioned a permanent return to India in 2017 or at all. She believes that he tricked her into returning for the cousin’s wedding in July 2017. I favour the mother’s evidence over the father’s because it is supported by the objective evidence set out above. The evidence that supports a finding that the move to Australia was permanent includes that the father and the daughter are Australian citizens and the mother is a permanent resident. In addition to these very strong links to Australia, the father had his business interests and family home in Australia. In these circumstances, it is more likely that the mother and father did agree to move to Australia permanently after their wedding and that they never agreed to return to India permanently in July 2017. Therefore, I reject the father’s evidence and find that he has deliberately told untruths to support his opposition to the granting of a passport. It is unlikely that the family would decide to relocate their home base from Australia to India at a time when the father still had significant business interests in Australia and without first securing their own home in India or selling their Australian home and vehicle.
With respect to the events in November 2017 and 30 May 2018, I would accept the mother’s version of events over the father’s version. The events on 30 May 2018 are particularly relevant because this represents the day of last contact between the father and the daughter. The mother says that she was treated badly by the father and his family when she was living with him in the paternal grandparents’ house in the months of March, April and May 2018. They were not happy that she was going to job interviews because they did not want her to work. Eventually, the situation escalated when the father threw the mother out of the house on 30 May 2018. The daughter remained inside the house at first but became very upset, no doubt because of being separated from her mother. Eventually, the daughter was allowed to go outside to be with her mother. The mother pleaded with the family to let them back in, but they refused. After a reasonable amount of time the mother decided that she had no choice but to go with her daughter to her parents’ house which was situated about 30 kilometres away.
The mother was understandably very upset by the events of 30 May 2018 and it was reasonable in those circumstances for her to refuse the husband’s request that they return home. In any event, the father left India in August 2018 and did not return until October 2019.
As for the father’s evidence more generally, it was often not supported by objective evidence and was very self serving. He provided no phone records to support his evidence that he made regular and numerous attempts to contact his daughter by phone. When it suited him, he said that he did not make more contact because that was the advice from his lawyers. He also said that he did not go to get his daughter because the mother had threatened to commit suicide on the phone at the time of the November 2017 incident. The mother strongly denies ever saying that she would commit suicide. I believe her. Based on her written and oral evidence, I consider it would be very out of character for her to say such a thing and, certainly, to do such a thing. I find that the father fabricated this evidence so that he could blame her for him not making contact with his daughter.
The other significant issue of dispute relates to the passport of the daughter in 2018 and 2019. The mother alleges that the father took it so that the daughter could not travel back to Australia with her mother. This allegation was put in an email to the father from the mother dated 29 July 2019[59] to which there was no response. The father said his lawyers told him not to respond because the legal proceedings in India had commenced by that stage. I consider that to be unlikely. It was a personal email which effectively invites him to make contact with the daughter. The mother wrote:
I don’t know how you can ignore her and you didn’t even contact us since May 30^th 2018. You kept [the daughter’s] passport and OCI under your control and left me no option.
[59] T10, p 55.
Having received no response to the email, the mother engaged lawyers who wrote to the father at his Brisbane address asking for the return of the passport “so as to allow our client to travel to Brisbane, Australia with [the daughter] forthwith.” The letter was dated 14 August 2019 and said:[60]
[60] ST2, p 32.
We are instructed that you and our client ("the parties") travelled to India with [the daughter] in or around July 2017 to attend the marriage celebrations of a family member. Our client instructs that such travels of the parties and [the daughter] were only intended to be a temporary visit to India. Our client instructs that it was never the intention of the parties to remain in India indefinitely.

Notwithstanding the said intentions of the parties regarding their initial travels to India, our client and [the daughter] have remained in India since about July 2017. Our client instructs that you returned Brisbane, Australia in or around August 2018 in which you took [the daughter] Australian passport which is [the daughter] only passport. Our client instructs that you continue to retain [the daughter] Australian passport in your possession and have indicated to our client that you have no desires nor intentions of returning the same to our client. Our client instructs that your sole purpose of taking and retaining [the daughter] Australian passport is to restrict our client from travelling back to Australia with [the daughter] which, in our view, is completely unreasonable, unjustified and inappropriate.
As you would be aware, [the daughter] passport is necessary for [the daughter] international travel, and more particularly, her return to Australia. Our client instructs that since her arrival in India in or around July 2017, our client has made several requests to you for [the daughter] Australian passport and to return with [the daughter] to their principal place of residence in Australia. However, you have refused all such requests without justification or explanation. As a result of your refusals, our client and [the daughter] have remained in India which has been against their will and is unaligned with [the daughter] best interests.

We wish to remind you that in absence of any Court Orders providing to the contrary, such long-term decisions in relation to [the daughter] place of residence must be made jointly, given the parties' equal-shared responsibility for the long-term care, welfare and development of [the daughter].
We are instructed that [the daughter] has spent the majority of her life and upbringing in Brisbane, Australia and our client does not consider it to be in the best interests of [the daughter] to remain and live in India for any extended period of time. Our client considers that [the daughter’s] welfare, growth, development, general well-being and right to enjoy meaningful relationships with each of her parents is at serious risk in the event that [the daughter] is restricted from returning to Brisbane to live. Our client does not consent to [the daughter] remaining in India on a permanent basis and wishes to return to Australia as soon as practicable and without delay.

I consider this to be an entirely reasonable request. The father was living in Brisbane. The mother was offering to return to Brisbane with the daughter so that the daughter could be with both her parents. The mother clearly had the best interests of the daughter in mind.
The father responded on 2 September 2019 through his lawyers saying that he did not have the passport and that it was appropriate for the dispute to be resolved by the Indian proceedings which were on foot.[61] In response, by letter dated 30 September 2019,[62] the mother asked the father to sign an Australian passport application for the daughter, which I consider again to be an entirely reasonable request. He refused to do so and instead, by letter dated 14 October 2019,[63] blamed the mother for depriving the daughter of having a meaningful relationship with the father. This was an unfair allegation given that he was not even in the same country as his daughter from August 2018 when he returned to the family home in Brisbane and then prevented his daughter from being with him by not agreeing to a passport for her. On 18 October 2019, the mother filed a court document in 576 of 2019 submitting that she and her daughter were willing to join the father.[64] At this stage the mother was trying to keep the family together and she was willing to live with her husband for the sake of the daughter either in Australia or India, although she said in oral evidence that she had a preference for Australia. It is apparent that the father did not want that because he responded by withdrawing the petition for conjugal rights in 576 of 2019 on 27 January 2020[65] and instead issued a petition to dissolve the marriage on 7 February 2020.[66]
[61] ST2, p 35.
[62] ST2, p 37.
[63] ST2, p 40.
[64] Exhibit 20.
[65] Exhibit 15.
[66] Exhibit 15.
I accept the evidence of the mother with respect to the passport and generally as set out in the 14 August 2019 letter. It is more likely that the father had control and possession of the daughter’s passport so that he could achieve his objective of relocating the family to India and not allowing the daughter to return to Australia. It may be the case that he lost the passport but either way he had achieved his objective. It is unlikely that the mother had the passport because if she did, she would not have written to the father asking for it and she would likely have used it to leave India with her daughter. It is also unlikely that the mother lost the passport because she would have reported it lost given the value it had for her.
Overall, in so far as the father’s evidence differs from the mother’s evidence, I would accept the evidence of the mother. She described the father as a very controlling person and I consider that he took possession of the passport so that he could exercise control over the mother and the daughter. The mother has told a consistent story from the beginning. The version of events recorded in her lawyers’ letter in 2019 is consistent with the story recorded by Dr Sheridan in 2022 and is consistent with the story she told the Tribunal at this hearing in 2024. I observed her giving her oral evidence and I consider that she was a witness who was telling the truth. She is a woman who has been mistreated and deceived by her husband who was a very controlling man who was prepared to tell lies to achieve his objectives.
As for the father’s reliance on the Indian proceedings that had been issued in March 2019, it is important to remember that these proceedings were issued by the paternal grandfather on behalf of the father. The petition was signed and verified by the paternal grandfather on 17 January 2019. It is clear from the terms of the petition that any reference to the petitioner is a reference to the paternal grandfather; for example:
1. The Petitioner is the father in law of the Respondent and father of Respondent husband by name Kakarla Bhanu Prasad who is presently residing in Australia.
…
21. The Petitioner submits that in the circumstances stated above, it is just and necessary that he be given permanent custody of her minor child …
The prayer for relief in the petition seeks a judgment “granting permanent custody of the minor child … to the Petitioner herein”.
It is not in dispute that at the time this petition was issued the father was living in Australia. On the face of the petition, it is the paternal grandfather who is seeking permanent custody of the daughter. This is not surprising because the father could not be granted custody when he was living in Australia. The father said in evidence that if custody had been granted, he would have returned from Australia, but it is interesting to note that even as at December 2019 when petitions for visitation rights and not to dislocate were issued, it was the paternal grandfather who swore the supporting affidavits on 16 and 19 December 2019 which included the same paragraphs as follows:[67]
1. I am the Petitioner herein and also Petitioner in the main case as such well acquainted with the facts of the case.
2. I am the father in law Respondent and father of the Petitioner by name Kakarla Bhanu Prasad who is presently residing in Australia.
…
21. My Son is working in abroad …
…
23. I further submit that my son intends to windup the business for the sake of family. …
…
26. I further submit presently my son is in India and the respondent is very well aware of the same and still insisting of formalities.
[67] Annexures B and D to the father’s affidavit of 15 June 2022, exhibit 19.
Despite the affidavit saying that the father was in Australia and in India, the father in his oral evidence gave a further alternative and said that he did not swear the affidavits because he was abroad in China. Wherever he was, the father was relying on the paternal grandfather to sign court documents and to prosecute the proceedings instead of doing so himself. In these circumstances, it was entirely reasonable for the mother to not consent to the orders being sought in the Indian proceedings and to instead request DFAT to issue a passport for her daughter to allow her to travel to Australia. As set out above, the mother made that request by letter dated 22 November 2019.
The father says that the mother was acting unreasonably by not agreeing to the visitation rights sought by the petition dated 19 December 2019. However, this must be seen in the context of the father being away in Australia for about 14 months up until October 2019 and the mother offering to return to him with the daughter. It is clear from the letters from the lawyers for the mother that she was trying to conciliate in August, September and October but, having no success, she was forced to take the next step of asking DFAT for a passport for her daughter on 22 November 2019. In these circumstances which included that the petitions brought on 19 December 2019 were signed by the paternal grandfather and not the father, the mother did not consider that the father had a genuine desire to be reunited with his daughter. She decided to leave the Indian proceedings in the hands of her lawyers and the court at that stage and to pursue the application for the passport in Australia.
I reject the father’s contention that the mother has brought this application for review in order to undermine the outcome of the Indian proceedings. The father also contends that the mother only made the request for a passport in response to the Indian proceedings. I reject that further contention because it was the father who had taken the daughter’s passport when he went to Australia in August 2018 and the mother then tried contacting his family through relatives to get the passport back. I have no doubt that if she could have travelled back to Australia with her daughter she would have done so but the reality was that she was being detained in India against her will because she could not leave without her daughter. It was only later when the mother had to be in Australia to avoid jeopardising her permanent residency status that she left begrudgingly.
In fact, it was the father who responded to the mother’s request to DFAT for a passport by bringing further petitions and taking further action through the paternal grandfather in the Indian courts from December 2019 onwards. Given that the mother had by this stage lodged her request to DFAT, I consider that it was reasonable for her to oppose these further proceedings in the Indian courts. Further support for the mother’s position came from the report of Dr Sheridan which confirmed that she was a loving mother and that the daughter was suffering and wanted to come to Australia so she could be with her mother.
Since May 2018, the father has only seen his daughter once in October 2022. The fact that he successfully visited his daughter suggests he could have before and more often. Instead, he sent his lawyers to visit her on her birthday in October 2020 when he could have visited himself.
Despite being issued more than five years ago, the proceedings in the Indian court have still not progressed to a hearing of the substantive issue. There is no guarantee that there will not be further delays based on past experience. In any event, the presence of the proceedings in India is not determinative of the issue in these proceedings and I give little weight to them in terms of whether to exercise my discretion to grant a passport to the daughter.
With respect to the exercise of my discretion in this matter, I agree with what was said by the Deputy President in S and Minister for Foreign Affairs (General) [2018] AATA 1083 which is apposite to this case:
[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.
In addition to relying on s 11(2)(b) and the daughter’s welfare, the mother also relies upon the special circumstances in s 10(3) of the Determination at subsection (d), (g) and (i).
No contact for a substantial period - s 10(3)(d) of the Determination
A special circumstance for the purposes of s 11(2)(a) of the Passports Act is where there has been no contact between the child and the non-consenting person for a substantial period before the application is made. The Explanatory Memorandum for the Determination says 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.
The mother made her application to DFAT on 22 November 2019. The last contact before that date was 30 May 2018. Therefore, the period of no contact was eight days less than 18 months.[68] As at May 2018, the daughter was 3 years and 7 months old. She was 5 years and 1 month old when the passport application was made. The period of no contact represented almost 30 per cent of the daughter’s life which I consider to be a substantial period. The statement in the Explanatory Memorandum that a substantial period may be less than two years depending on the age of the child indicates that a period of less than two years may be considered a substantial period from the perspective of the child. For a younger child, a substantial period may be considerably less than two years. For an older child, a substantial period would more likely be up to two years. In this case, the daughter, who was only 3 years and 7 months old, had no contact with her father for the next almost 18 months, which represents a substantial period for a child of that age.
[68] The respondent’s SOFIC at [46] notes that it is common ground that the father last had contact with the daughter in May 2018 and that constitutes approximately one year and six months before the passport application was lodged.
During most of the period of no contact (namely about 14 months) the father was away in Australia during which period he made no attempts to see his daughter. In August 2018, he appears to have ignored his daughter’s birthday wishes when she left a message on his phone. The father blames the mother for taking away the daughter on 30 May 2018 but I have already found that he brought about that situation by throwing the mother out of the house. The father also contends that the issue of the Indian proceedings in March 2019 represents an attempt by the father to see his child which was opposed by the mother. I have rejected that contention because the proceedings were brought by the paternal grandfather as the Petitioner (on behalf of the father) and it was the paternal grandfather who sought custody of the daughter because the father was living in Australia at the time. It was not until December 2019 (after the passport request had been made) that the father sought visitation rights and even at that time the interlocutory petition was brought by the paternal grandfather because the father was not in India.
I conclude that the discretion to issue a passport is enlivened by operation of s 10(3)(d) of the Determination because there was no contact between the father and the daughter for a substantial period before the application for a passport was made.
Evidence of family violence – s 10(3)(g) of the Determination
There is no evidence of family violence by the father to the daughter. The mother explained in her oral evidence that the father had never been physically violent with the daughter. Indeed, it was apparent from the evidence given by the father that he loved his daughter very much, despite spending so much time away from her. One explanation for the untruths he has told is that he does love his daughter and wants to be with her in India and was prepared to fabricate evidence to achieve his objective.
The fact that the mother wrote in the letter requesting a passport that the daughter was mistreated and tortured is a factor that weighs against my exercising a discretion to grant a passport. However, by the time of the hearing before the Tribunal, the mother had withdrawn any allegation of physical violence.
The child requires a travel document to continue to legally reside overseas – s 10(3)(i) of the Determination
The official guidelines[69] from the Ministry of Home Affairs, Government of India, for OCI cardholders provides that the stay of foreigners in India without a valid passport is illegal even if you are an OCI cardholder. The guidelines say that it is necessary that OCI cardholders staying in India should be in possession of a valid passport and OCI card at all times. The daughter is an OCI cardholder but she does not have a passport. Therefore, her stay in India is illegal and she requires a passport to continue to legally reside in India. It follows that the discretion to issue a passport is enlivened by operation of s 10(3)(i) of the Determination.
[69] Exhibit 22.
In the circumstance of the mother wanting her daughter to have a passport so that she can return to Australia, I would not give much weight to this factor. However, I would expect that the mother and daughter would travel occasionally to India if the daughter has a passport and it would therefore be important to have both a passport and an OCI card so as to ensure compliance with the laws of India.
Whether to exercise the discretion to grant a passport
I have decided to exercise the discretion in favour of granting a passport to the daughter. I am satisfied pursuant to s 11(2)(a) of the Passports Act that the daughter’s psychological welfare would be adversely affected if she were not able to travel back to Australia. Upon being so satisfied, the usual prohibition against issuing a passport without both parents’ consent does not apply. The undisputed evidence from Dr Sheridan is that the daughter is experiencing major depressive disorder in reaction to being separated from her mother. She is effectively trapped in India. The daughter is an Australian citizen and she wants to get a passport so that she can return to Australia and be with her mother. The daughter was born into a family who considered Australia their home. The father is an Australian citizen and the mother is a permanent resident. The three of them lived in Australia until the father tricked them into going to India and then refused to enable her to return. The father in 2015 had consented to the daughter being issued a passport but now he refuses. It is in her best interests to have a passport again.
The effect of granting a passport to the daughter does not prevent the father from seeing her. He is an Australian citizen who first came to Australia to live in 2003. The father’s home was Australia until 2017 when he apparently decided, without consulting the mother, that the family would relocate to India. It was his choice to return permanently to India, but it was not expected by the mother. His purported decision to relocate to India, despite being an Australian citizen and having a daughter who is an Australian citizen, does not entitle him to prevent his daughter’s return to Australia. Nor does the fact that he has issued proceedings in India for custody, particularly in circumstances when he tricked his family into coming to India. Further, it is also apparent that, whilst he has sold some of his businesses in Australia, he still has Australian business interests together with real estate and vehicles. Even since he relocated his family in 2017, he has spent a significant amount of time in Australia which suggests he is likely to continue to do the same in the future. There is no evidence to suggest that the mother would prevent the father from seeing the daughter if she were allowed to travel to Australia. In fact, the mother gave oral evidence that if the daughter came to Australia she would expect that the father would have the right to see her.
I have taken into account that the daughter’s maternal and paternal grandparents live in India, but both the mother and the father decided to move away from India many years ago and to start a new life in Australia. Their daughter is part of that life in Australia and I would expect that she will visit her grandparents regularly in the same way that the mother and father have regularly travelled to India in the past. Granting her a passport will enable her to freely travel and maintain a connection with her relatives in India.
I do not consider that the exercise of a discretion in this case would be contrary to the statutory objectives relating to child abduction and the rights of parents.[70] I have found that the mother held a genuine belief that the trip to India in 2017 was only temporary and that they would return to continue to live in Australia as a family shortly after the cousin’s wedding. There was never an agreed decision to relocate from Australia. Having deceived the mother, the father then refused to enable the daughter to return to Australia by opposing the grant of a passport to her. The mother has never hid the fact that she wanted a passport issued to her daughter so that she could return to Australia to live with her. First, she sought the father’s cooperation for the issue of a passport, but he refused so she was forced to request DFAT to issue the passport without his consent.
[70] See respondent’s SOFIC at [48].
Despite not having the father’s consent, I do not consider that the mother would be abducting the child by bringing her back home to Australia. The daughter finds herself in India because the mother was tricked by the father into taking her there in 2017. Returning the daughter to the country in which she has citizenship and which she called home is not an abduction. The daughter is almost 10 years old and wants to return to Australia. She is not being forcibly removed against her will. As noted by Dr Sheridan, it is the daughter’s view that she wants to get a passport and to live with her mother in Australia. The fact that she is currently separated from her mother has caused her to experience major depressive disorder. The daughter is an Australian citizen and she ought be able to return to Australia to continue to live as an Australian resident with her mother.

The existence of the Indian proceedings does not in my view create any rights of the father that would be thwarted if the daughter were granted a passport. There are no current orders in India which would prevent the daughter getting a passport and travelling to Australia. Section 11(3) of the Passports Act does not apply as the Minister has not refused to issue an Australian travel document because the matter should be dealt with by a court. The Indian proceedings do not create a basis for refusing to exercise my discretion in all of the circumstances.
The father could have been reunited with his daughter if he had accepted the mother’s reasonable proposal in August to October 2019 for them to return to Brisbane to be with him. Instead he refused and he has only seen his daughter once more on a short occasion in October 2022.
The discretion to grant a passport is enlivened because of the special circumstance of no contact for a substantial period and because I am satisfied that the daughter’s welfare would be adversely affected if she were not able to travel back to Australia to be with her mother. Even if I was wrong about my interpretation of substantial period such that s 10(3)(d) of the Determination did not apply, I would still exercise my discretion to grant a passport taking into account all the circumstances.
It is apparent that the daughter is suffering as a result of not having a passport and being separated from her mother. In order to bring an end to that suffering, the daughter should be granted a passport. The decision under review should be set aside and substituted with an order that an Australian passport is to be issued to the daughter.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.................[SGD]................
Associate
Dated: 26 September 2024

Date(s) of hearing: 14, 15, 22, 23, 26 August 2024

Date final submissions received: 23 August 2024

Advocate for the Applicant: Ms Rajasri Pinnamaneni

Solicitors for the Respondent: Sparke Helmore Lawyers

Counsel for the Other Party: Mr Jackson Wherrett

Solicitors for the Other Party: Lodhia Lawyers

[2024] AATA 3547

26 September 2024

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Consent

Standing

Remedies

Date(s) of hearing:	14, 15, 22, 23, 26 August 2024
Date final submissions received:	23 August 2024
Advocate for the Applicant:	Ms Rajasri Pinnamaneni
Solicitors for the Respondent:	Sparke Helmore Lawyers
Counsel for the Other Party:	Mr Jackson Wherrett
Solicitors for the Other Party:	Lodhia Lawyers