WHRD and Minister for Foreign Affairs

WHRD and Minister for Foreign Affairs [2024] AATA 1556 (11 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/6613
Re:WHRD
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

AndJRBH
OTHER PARTY

DECISION
Tribunal:Mr Robert Reitano, Member
Date:11 June 2024
Place:Sydney

I set aside the delegates decision and remit the matter to the delegate with a direction that the Applicant be issued an Australian passport.
........................................................................
Mr Robert Reitano, Member
CATCHWORDS
PASSPORT – child – person with parental responsibility not consenting – child’s psychological welfare adversely affected – child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally – whether adverse affect required to be significant - relevance of policy – relevance of declaration that matter more appropriate for court – statement from medical practitioner – exercise of discretion – time, cost and delay – whether reasons for not consenting relevant
LEGISLATION
Australian Passport Act 2005 (Cth)
Australian Passports Determination 2015 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179;
Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12
SECONDARY MATERIALS
Explanatory Memorandum to the Australian Passports Bill 2004
Explanatory Statement to the Australian Passports Determination 2015
Australian Passports Office Policy
REASONS FOR DECISION
Mr Robert Reitano, Member

On 2 May 2023, the Applicant’s mother lodged an application for an Australian passport. The Applicant was then aged 15 years of age. The Applicant’s father did not consent to the Applicant having a passport, and so the application needed to be considered and determined on one of the discretionary grounds in the Australian Passport Act 2005 (Cth) (Act) that permit a child to be issued a passport without parental consent.
A delegate of the Minister for Foreign Affairs (Minister) refused to issue an Australian passport to the Applicant because the delegate was not satisfied that the exceptions for issuing an Australian passport without consent were applicable, or those exceptions which were applicable did not justify the exercise of the discretion to issue a passport. That decision was affirmed on review by another delegate who notified the Applicant that it was open for her to bring an application for a review to the Tribunal, or to commence court proceedings.
The Applicant took the option of applying to the Tribunal for review, and has asked the Tribunal to review the delegate’s decision with a view to having it set aside so that an Australian passport can be issued to her.
I have decided to set aside the delegate’s decision and remit the matter to the delegate with a direction that the Applicant be issued with an Australian passport. These are my reasons for that decision.
I should indicate that because this matter involves a child, her name and any matters that might directly identify her should be confidential. For this reason, I have made a pseudonym order. For the same reason, I have referred to the respective family members involved as ‘mother’, ‘father’. ‘sister’ and ‘grandfather.’ No disrespect is intended to any of them in doing so.
I should also note that a separate confidentiality order was previously made concerning the disclosure of the identity of the medical practitioner involved in the matter, so I have referred to her as ‘medical practitioner’ in these reasons. Again, no disrespect is intended.
THE RULES
Section 11 of the Act provides for the conditions that are required to be met for a passport to be issued to a child. The section provides so far as is relevant:
(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.
There was no issue that both the father and the mother were each of the persons with parental responsibility as referred to in s.11(1), so it is not necessary to repeat the definition of that phrase.
Section 48 of the Act deals with what decisions are, and are not, decisions under the Act that are capable of being reviewed by the Tribunal. The section sets out the various decisions that may be the subject of review. Regarding decisions refusing to issue a passport, sub-section 48(b) provides:
(b) a decision to refuse to issue an Australian travel document (other than a decision in relation to which a declaration under subsection 11(3) has been made or a decision made because of subsection 12(2)).
That section is important because neither the Minister nor the delegate made a declaration under s.11(3) in this case, which would have rendered the decision incapable of review by the Tribunal. Nor does s.48 permit a review of a decision to make a declaration under s.11(3). I will return to the importance of this section later.
The Explanatory Memorandum to the Australian Passports Bill 2004 (Explanatory Memorandum) says under the heading ‘Outline’ that one purpose of the Act is “to ensure consistency with family law, privacy and administrative law principles.” The Explanatory Memorandum provides that:
The new elements of Australian passports law and policy, which will be introduced with the Australian Passports Bill, include:
. . .
· the exceptions to the requirement for either both parents’ consent or a court order for a child to travel internationally will make clear that disputes between parents should be dealt with by the courts.
The Explanatory Memorandum also says at [24] and [25] in relation to s.11 generally:
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.
25.The provisions will largely update the 1938 Act. A principal change will be new subsection 11(3) which will ensure that, if parents of a child disagree about the child travelling internationally, the dispute is dealt with by the courts and not under passports law.
The Explanatory Memorandum says at [27] under the heading ‘General Exceptions’ that:
27. Paragraphs 11(2)(a) to (d) will allow exceptions to the basic requirements. The Minister will not be prevented from issuing an Australian passport to a child if the Minister is satisfied that: [the exceptions appearing in s.11(2)(a) to (d) of the Act are then set out]
Finally, of relevance is what the Explanatory Memorandum provides for at [183]:
183.Clause 48 will set out which decisions made by the Minister or the Minster’s delegate are reviewable decisions. These will include all decisions relating to the issuing (including reduced validity) and cancellation of an Australian passport, except the issue of a passport to a child. The circumstances in which a person having parental responsibility may wish to object to the issue of a passport to a child are more appropriately dealt with by a court.
An Explanatory Memorandum will generally not be relevant to ascertaining the limits of a statutory discretion where there is no ambiguity in, or doubt raised about, the limits established by the terms of the Act itself. Again, I will return to this albeit briefly later.
Next, s.11(2)(a) of the Act refers to ‘circumstances specified in a Minister's determination as special circumstances exist.’ The Minister has prescribed those circumstances in paragraph 10(3) of Australian Passports Determination 2015 (Determination). It is unnecessary to refer to all of the circumstances that have been prescribed; only two are relevant. Paragraph 10(3)(d) prescribes circumstances where ‘there has been no contact between the child and the non‑consenting person for a substantial period before the application is made.’ Paragraph 10(3)(f) prescribes circumstances where a family violence order has been issued against the non‑consenting person.’
Also relevant to the regulatory scheme governing the issuing of passports to children is the Explanatory Statement to the Australian Passports Determination (Explanatory Statement). It is convenient to set out only those parts of the Explanatory Statement that are relevant. Paragraph 36 of the Explanatory Statement provides:
The objectives of the child passport provisions are to protect a child from international parental child abduction and safeguard the rights of persons with parental responsibility.
Paragraph 49 of the Explanatory Statement provides that for the purpose of s.10(3)(d) of the Determination 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.
Paragraph 54 of the Explanatory Statements deals with the special circumstance in paragraph 10(3)(f) of the Determination related to family violence orders. It refers to the importance of the provisions because:
. . . it is often not appropriate to contact the non-consenting person to seek consent where there is family violence…[and that] Ordinarily, where the consenting person is a parent with parental responsibility for the child for the purposes of the Passports Act, this power would not be used if a court order (including a family violence order or family law order) permits access or contact between the non-consenting person and the child.
Finally, there is the Australian Passports Office Policy (Policy) that applies to the exercise of discretion. The existence of a policy that guides the exercise of a statutory discretion is generally something to which the Tribunal will have regard in arriving at the correct or preferable decision. Where a discretion is to be exercised, the application of a policy ensures consistency in decision making which is a hallmark of sound administration. Notwithstanding, there may be cases where applying a policy may lead to an unsound result. For example, the policy may be inconsistent with the enacted power or there may be a sound reason to depart from it.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA179; Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12
The Policy adopts the relevant parts of the Explanatory Statement in defining ‘substantial period’ and refers specifically to ‘contact’ as including contact by ‘telecommunications’.
The Policy also considers the circumstances in which a family violence order will be relevant. The circumstances include: whether the order has expired or been withdrawn, how long since the order was issued, whether the order is interim or final and whether the order permits access or contact between the nonconsenting person and the child. The Policy is concerned with circumstances where an order has been issued and the objective is to ensure that ‘no person is put at risk of further harm’.
The Policy also deals with matters that are relevant to the application of s.11(2)(b) of the Act concerning the welfare of the child. Because of the importance that this section assumes in this review, it is necessary to set out the relevant part of the Policy in its entirety:
POL028513Acceptable evidence for exception - physical or psychological welfare would be adversely affected if not able to travel internationally.
·Risk of physical or psychological harm to the child includes any detrimental effect of a significant nature on a child’s physical, psychological or emotional well-being. Harm may be caused by physical or emotional abuse, neglect and or sexual abuse or exploitation.
·Risk to the child’s physical welfare includes cases where the child’s medical needs are life threatening and cannot be met if the child is unable to travel internationally, as needs as the child’s current country of location does not provide (or the child cannot access the needed care.
·The application must be accompanied by a written statement from a registered healthcare provider to support the claim. The statement must be provided on the healthcare provider or institutions official letterhead, dated and signed accordingly.
·Where the healthcare provider is overseas, consideration will be given to an equivalent registration body overseas, if available. In such cases, a written statement must be provided on the letterhead clearly indicating the health professional's name, occupation, registration, date and contact details.
·The healthcare provider must state impartially whether the physical and/or psychological welfare of the child is at risk if the child is not able to travel internationally.
Healthcare Provider Requirements in Australia
·The healthcare provider must be registered with a registration authority as a member of a particular health profession to ensure that only healthcare providers who are suitably trained and qualified to practice in a competent and ethical manner are recognised for the purposes of providing such a statement.
·A written statement will be accepted from any of the following healthcare providers only:
-    Medical practitioner
-    Counsellor
-    Psychologist
-    Psychiatrist
-    Social Worker
·The delegate must be satisfied that the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally.
·While it is expected that the adverse effects on the child will be more than the usual disappointment experienced, the delegate does not have the relevant expertise to dispute a statement provided by an acceptable healthcare provider if that statement specifically addresses the adverse effect on the child's welfare should the child not be able to travel internationally.
·The delegate must assess the full circumstances of the case (i.e. purpose of travel, whether the non-Lodging person is refusing to consent, etc.) and, where this exception has been met, decide whether they wish to exercise their discretion in light of any other information available.
·For example, it may not be appropriate to exercise the delegate's discretion where the Lodging person is wishing to permanently relocate the child against the wishes of another person with parental responsibility.
·Delegates must also ensure that the medical statement has been verbally confirmed with the author and, where the healthcare provider in Australia has failed to detail their professional registration number and national registration body on the statement, a verbal confirmation.
The reference in the first dot point to ‘[r]isk of physical or psychological harm to the child includes any detrimental effect of a significant nature . . .’ is prone to causing confusion. It introduces the notion of effects of a ‘significant nature’, by reference to what might be included in the phrase ‘risk of physical or psychological harm’. Sub-section 11(2)(b) of the Act, ‘the child's welfare (physical or psychological) would be adversely affected’ are not qualified by any reference to the degree or significance of any ‘affect’. That does not mean the significance of the ‘affect’ is not relevant to the decision, because it might be relevant to discretionary considerations. It simply means that it is irrelevant to the question of whether the pre-condition to exercising the discretion under s.11(2)(b) is met.
Finally, so far as the legislative and related powers rest with the Minister, the Tribunal on review is the repository of that power. The Tribunal is, in this review, standing in the place of the Minister such that any satisfaction the Minister must have is satisfaction the Tribunal on review must have.
THE ISSUES
There is no issue that the father is a person with parental responsibility who does not consent to an Australian passport being issued to the Applicant. There is no court order that requires for one reason or another that the Applicant have an Australian passport. That means the only issue is whether any of the exceptions to consent or court orders are met and, if so, whether the discretion to issue an Australian passport should be exercised.
The first two issues are whether the special circumstances in paragraph 10(3)(d) or 10(3)(f) of the Determination are established. These are whether ‘there has been no contact between the child and the non‑consenting person for a substantial period before the application is made’; or whether ‘a family violence order has been issued against the non‑consenting person.’ It will be seen that those issues are disposed of quickly.
The more significant issue is whether, under s.11(2)(b) of the Act, I am satisfied that the Applicant’s ‘welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally’ so that the discretion to issue an Australian passport should in the circumstances be issued.
THE FACTS
There is little controversy about the facts. The Applicant was born in June 2007. The mother and father are her parents. The mother and father separated during or around the end of the first two years of the Applicant’s life.
Since she was about two years of age, the Applicant has lived with the mother but occasionally visited the father for various short periods during her life till now. There have been long periods, years, where there has been no contact between the father and the Applicant. It is unnecessary to cover the reasons why that happened other than to record it is part of the history between the parties. I do not think that the father intended this to be the way things were, but it is the way things turned out.
Throughout the Applicants entire life, it has been the mother who has made all the important decisions about her care such as her schooling and health needs, although more recently so far as the latter is concerned, the Applicant has ventured off on her own. The father has never participated in school matters such as teacher interviews, enrolments, and the like. Nor has he participated in medical or dental appointments or birthday celebrations. Again, I gained the impression that that is probably not how the father wanted things to be.
On 21 July 2009, the Local Court made an apprehended violence order that protected the mother and any person she lived with in a domestic relationship against certain conduct by the father. At that time the Applicant was living with the mother.

The father has for many years paid child support to the mother. This was paid at his instigation from when the Applicant was two years of age. There has been something of an ongoing dispute between the mother and the father about the amount of child support payments the father has been required to pay. The dispute appears to have as its origins in the father’s belief that the mother is under reporting her income to the Child Support Agency, the effect of which is that he considers he is paying more to her than he should be paying in child support payments.
On 3 April 2023, the father called the Applicant, and they had a conversation. The father was inquiring about the Applicant, but after some time the conversation turned to the amount of child support the father was paying. The Applicant quickly concluded the conversation.
On 6 April 2023, the mother sent a text message to the father telling him she wanted to obtain a passport for the Applicant so she could take her to Japan ‘early next year’ and start taking her on overseas holidays. The text message said: ‘If I arranged the passport forms would you sign them for her?’. It is unnecessary to repeat what followed by text other than to record that the father did not consent to the Applicant obtaining a passport unless his child support payments were reduced by the mother ‘doing the right thing.’ ‘Doing the right thing’ involved, so far as the father was concerned, reporting a higher income to the Child Support Agency.
On 22 and 23 August 2023, there were some text messages between the Applicant and the father which commenced with a message from the Applicant asking directly “Why cant I get a passport?". Again it is only necessary to note that in a lengthy exchange, the father again presented his complaints about the child support he was paying because of what he believed was the mothers underreporting of income. The father did mention, after the Applicant outlined her plans for her education and her desire to ‘see the world’, that he considered the Applicant’s schooling was more important so he would not consent to her having a passport. In the context especially having regard to the earlier text exchange with the mother, the fathers’ reference to schooling does seem a little disingenuous.
The grandfather has booked and paid for the holiday which is in the second week of July 2024. During this period, the Applicant and her sister (who is 13 years of age) will be on school holidays. The mother, the Applicant, the sister and the grandparents are all accompanying each other to Indonesia. It had been originally booked for January 2024 but because the Applicant did not have a passport, it was cancelled or at least postponed until the second week of July when the Applicant and her sister will be on school holidays. The sister has been issued with an Australian passport so is able to travel overseas.
Next, I should say something about the relevant medical evidence. The medical practitioner has been the Applicant’s general practitioner for about four years, although she has seen the Applicant more frequently in the last year. The medical practitioner has practised as a general practitioner for many years and has undertaken about four years of work specifically in mental health.
The medical practitioner prepared four documents some of which were provided before this review and some after it began. Each document was on the medical practitioners’ letterhead, dated and signed. The first document, titled ‘Medical Certificate’ was dated 7 September 2023 and it said:
[WHRD] requires a passport to prevent further deterioration of her mental health.
The second document, titled ‘Medical Certificate’ was dated 19 October 2023. It recorded exactly what the first medical certificate said and continued:
I believe that [WHRD’s] psychological welfare will be adversely affected if she were not to be able to travel internationally.
[WHRD] lives with her mum and sister. She has no contact with her father who is preventing her travelling with her family by refusing to sign his part of the paperwork for passport application.
I believe if she cannot get a passport and travel overseas she will feel ostracized and socially isolated from her family network. She is currently 16 years old and experiences stressors related to adolescence and this complicating factor could cause further mental health deterioration.
Please feel free to contact me for further information [redacted]. My details are above.
The third and fourth medical certificates were dated 23 November 2023 and 9 May 2024, were in identical terms and contained all of the information in the second ‘medical certificate’, but included the following additional statements in various paragraphs:
If her family were to travel without her, [WHRD] would be left at home alone. She does not have any other family members who she could stay with and being alone would be inappropriate for a 16 year old.
[WHRD] has stated to myself that if she were to be left behind while her family were to travel, she would feel ‘isolated’ and experience ’sadness’ and ‘feelings of depression’. At the moment, she struggles with anxiety when she is left at home’.
[WHRD] has multiple commitments with work and school that she looks forward to returning to after the holiday away. She also has big plans for university and her career thereafter. She is not a flight risk,
The medical practitioner has not ever prepared a mental health plan for the Applicant. The medical practitioner said that the Applicant does not have a diagnosis of mental illness. The medical practitioner said that her concerns related to the volatility of adolescence and the effect that events could have on the Applicant in that time. Her evidence was that the process involved in obtaining a passport and not having the ability to go on holidays with her mother was having an impact on the Applicant’s mental health. Her evidence was that the Applicant would be more affected psychologically in her adolescence by not being able to go on holidays with her mother. The medical practitioner considered that taking away the Applicant’s freedom, especially as an adolescent, would be adverse to her psychological wellbeing. The medical practitioner referred to childhood trauma as the potential risk involved, which could develop into depression, anxiety and adjustment disorders.
The Applicant also provided some evidence that she believes her mental health is suffering at the moment because of the challenges of school and the dispute with her father regarding consent to her having a passport. The Applicant has suffered anxiety about her not being able to travel with her mother, sister and grandparents overseas.
SUBSTANTIAL PERIOD OF NO CONTACT
It was suggested that the special circumstance in paragraph 10(3)(d) of the Determination concerning there having been ‘no contact between the Applicant and the non‑consenting person for a substantial period before the application was made’ was satisfied.
There was, however, contact between the Applicant and the father about one month before the application was made. It was then that the father called the Applicant, and they had a conversation. The fact that they had had little contact before then for long periods of time is immaterial given the terms of paragraph 10(3)(d). A month is not a substantial period of no contact especially when regard is had to the period of two years suggested by the Explanatory Statement. The condition in paragraph 10(3)(d) of the Determination is not met.
FAMILY VIOLNCE ORDERS
It was suggested that an apprehended violence order made on 21 July 2009 against the father activated the special circumstance in paragraph 10(3)(f) of the Determination.
The apprehended violence order expired almost 14 years ago. I do not consider the words ‘family violence order’ to mean an expired order made long ago in some far distant time. The purpose of the paragraph 10(3)(f) is to safeguard people who are protected by an apprehended violence order by not requiring them to contact a person restrained by such an order. The Explanatory Statement specifically refers to circumstances where it may not be appropriate to contact the non-consenting party. Further, the Explanatory Statement eschews reliance on a family violence order where the non-consenting party is not precluded by such an order from having contact with the child. The condition in paragraph 10(3)(f) of the Determination is not met.
WELFARE OF THE CHILD
I am satisfied that the Applicant’s psychological welfare will be adversely affected if she were not able to travel overseas. I have arrived at this result for two main reasons.
First, I have had the benefit of the medical practitioners’ evidence both in written form and orally in hearing her answer questions by the parties. Her evidence is reasonable and plausible and is well within her field as a General Practitioner.
Second, and more importantly, I consider that I should apply the Policy in determining this issue. The Policy provides important common-sense guidance to the resolution of the question and is, so far as the question of whether the Applicant’s psychological welfare will be adversely affected is concerned, entirely consistent with the Act. I have already noted there is potential for confusion so far as it refers to ‘significant detriment’. In this case I do consider that the detriment is significant, at least in the sense that it is certainly not trivial which is the approach the Minister suggested I should take to the word ‘significant’.
I will briefly deal with the way in which the Policy is met. The medical practitioner’s conclusion that ‘I believe that [WHRD’s] psychological welfare will be adversely affected if she were not to be able to travel internationally’ is significant. Further, her evidence was that psychological harm will be caused if the Applicant is unable to travel internationally, causing a deterioration in mental health. Additionally, the medical practitioner said that the Applicant would be affected psychologically to a greater degree in her adolescence, and the removal of her freedom may cause feelings of isolation. This was more significant than simple feelings of disappointment. The medical practitioner identified that childhood trauma of this kind could potentially lead to more serious issues such as depression, anxiety and adjustment disorders.
The medical practitioner provided a (or, more precisely four) written statements on her letterhead which were dated and signed. The medical practitioner was registered and in one of the areas of ‘speciality’ required by the Policy. There was no suggestion that the medical practitioner was not acting impartially.
The medical practitioner held the relevant expertise. The Policy makes it very clear that a decision maker should not evaluate or question the medical practitioners’ evidence given that she has the relevant expertise. Although the written statements provided by the medical practitioner might not satisfy a court because they do not comply with expert witness requirements, for example because they are conclusory, do not outline the underlying facts and do not provide much reasoning, it is to be noted that that is not the purpose of the written statement. Nor are those kinds of things necessary or required under the Policy. The Policy provides that the medical practitioner (or other healthcare provider) has the expertise, and the delegate should accept the opinion of the medical practitioner. In any event, seeing and hearing the medical practitioner give evidence only strengthened the validity of the opinions she expressed.
As I am satisfied that the Applicant’s psychological welfare will be adversely affected if she were not able to travel overseas, the next question is whether a passport should be issued.
THE DISCRETION
There were several matters that are relevant to my exercise of the discretion in favour of issuing passport to the Applicant.
First, it was submitted that this was a parenting dispute that was more appropriately dealt with by the Federal Circuit and Family Court of Australia (Family Court). This, so the submission ran, was because the Act made clear that such disputes should be dealt with by that court. The difficulty that this submission runs into, is that the text of the Act in fact does not specify any such thing even though the Explanatory Memorandum is suggestive that something like that was the legislative intent.
To the extent that the Act requires parenting disputes to be dealt with by the Family Court, it does so by of the mechanism in s.11(3). That section provides the Minister with power to declare that a matter involving an issue concerning a child passport is more appropriately dealt with by a court. The effect of such a declaration is that any decision the Minister makes would not be reviewable by the Tribunal under s.48 but would need to proceed by application to a court. The legislature stopped short of creating a complete bar to this Tribunal determining matters involving disputes between those with parental responsibility and left it to the Minister, and presumably his delegate, whether disputes should be reviewed by the Tribunal or only by the Family Court. The bottom line is the Act contemplates that the Tribunal may in some cases that involve disputes between parents.
I noted earlier, no declaration was made in this case. In fact, the Applicant was advised of her right to bring a review to the Tribunal. Had a declaration been made, the submission would be sound, and this review would be over before it started because the application would be incompetent. The effect of now making a declaration as contemplated by s.11(3) would be inutile – such a declaration would only give to the Applicant the right she already had and she would need to bring a claim in Family Court.
Second, it was suggested that the objects of the Act are those referred to in the Explanatory Memorandum, namely that the child passport provisions ‘are to protect a child from international parental child abduction and safeguard the rights of persons with parental responsibility’. The Act does not specify those objects so far as child passports are concerned. In any event, there can be no doubt that the Act itself creates a scheme that achieves those objects, but it does so, whilst allowing exceptions because it otherwise might lead to unwanted outcomes, pointedly as is relevant in this case, such as adverse effects on children who are denied the opportunity to travel internationally. The exceptions recognise important circumstances which might override or trump respecting parental rights. Child welfare is an obvious one that is at the heart of this case. There is no sound reason why the issue in s.11(2)(b) of the Act is one that the Tribunal cannot review as a matter of principle, any more or less that the delegate can and did.
Third, even though there may be cases where the Tribunal should not decide questions concerned with parental responsibility, I do not see this as such a case, given that the issues are so finely defined. Additionally, the matter has come so far and the additional time, cost and delay in watching it go off elsewhere would be as inimical to the interests of justice, fairness and, more importantly, the welfare of the Applicant.
Fourth, it was suggested that in exercising any discretion, I should give weight to the rights of the father so far as his right to parental responsibility is concerned. I agree that it is an important matter which should be given weight, but I think the harm that may be done to the Applicant outweighs this consideration. In this regard, it was suggested that I should not inquire into or assess the father’s reasons for not consenting to the child having a passport, as it was his right to withhold consent.
Again, in my view, the potential harm to the Applicant is more important. If the father’s reasons somehow justify the existence or creation of harm to the child, then it may be rational to accept some level of harm to the child. Neither of the reasons offered by the father carry much weight. Withholding consent to a passport to extract a perceived better outcome for child support payments is extraordinary. Denying a child the opportunity to travel overseas with her mother, sister and grandparents for a week during scheduled school holidays might not be as extraordinary but in circumstances where the father has had little, if nothing to do with the child’s education at any time, the logic is far from obvious. There was little that was persuasive about the validity of the father’s reason concerning the Applicant’s educational needs being a justification to withhold his consent.
Finally, there are circumstances which the Policy directs attention to, that point in favour of issuing a passport – the Applicant will be able to apply for a passport in one years’ time, which is not a long time; the Applicant wants a passport so she can travel internationally; the Applicant is old enough to have some say in a decision of this kind; the mother supports the Applicant having a passport; the mother (as opposed to the father) has been the primary care giver who has made all major or important care decisions in respect of the applicant during her life including her education; the intended use of the passport is for a short, one week, holiday during school holidays; there is no suggestion, and an acceptance from all parties, that child abduction or relocation is relevant in this matter; and most importantly, there will be adverse psychological effects to the Applicant’s welfare and potentially other harm to the child if she is not issued with a passport.
In my opinion, weighing all relevant factors, this is an appropriate case to exercise the discretion to issue a passport.
DECISION
I set aside the delegates decision and remit the matter to the delegate with a direction that the Applicant be issued an Australian passport.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision herein of Mr Robert Reitano, Member

........................................................................
Associate
Dated: 11 June 2024

Date(s) of hearing: 30 May 2024

For the Applicant: The Mother (in-person)

Solicitors for the Respondent:

For the Father:

Mia Donald, Sparke Helmore Lawyers (in-person)

The Father (by video)

[2024] AATA 1556

11 June 2024

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