The Decision in Yazbeck
30 My views appear to be inconsistent with those expressed by Sundberg J in Yazbeck, to which case I now turn. Sundberg J was there concerned with an application for a different class of visa. However the relevant criteria were identical to those set out in subpar 801.221(6)(c)(ii). In order to understand his Honour's reasons, it is necessary that I say something about the terms "residence order", "contact order" and "child maintenance order" used in items (B), (D) and (E). Prior to amendments to the Family Law Act in 1995, in proceedings for dissolution of marriage or other proceedings relating to the welfare of children, it had been traditional to speak of "custody orders", regulating the day-to-day residence and supervision arrangements for a child, "access orders", regulating the contact between a non-custodial parent and the child, and "maintenance orders", relating to financial contributions to the support of the child. In 1995 the Family Law Act was amended by the Family Law Reform Act 1995 (Cth) (the "1995 Act") to provide for "parenting orders", "residence orders", "contact orders", and "child maintenance orders". Broadly speaking a parenting order is any order dealing with the person or persons with whom a child is to live, contact between a child and another person or persons, maintenance of the child, or any other aspect of parental responsibility for a child. A residence order is a parenting order dealing with the child's residence arrangements. A contact order deals with contact between the child and another person or persons. The term "child maintenance order" is self-explanatory.
31 In Yazbeck, the visa applicant claimed to have access to relevant children because he had recently seen them at his cousin's house. The Tribunal concluded that this did not establish that the applicant had access to the children. This conclusion is, in my view, correct. Item (A) contemplates some form of continuing access rather than one previous incident of contact. For that reason I agree that the visa applicant in Yazbeck did not have access. However Sundberg J appears to have gone further. It was there submitted on behalf of the visa applicant, as it was submitted in this case, that item (A) does not require that a visa applicant have access pursuant to a court order, and that the requirements of that item will be satisfied if there is an arrangement between the parents which confers a continuing right of access upon the visa applicant. If the argument is correct, the references to "custody" and "joint custody" should probably be similarly construed. It was pointed out in Yazbeck, as it was in the present case, that whereas item (B) requires a residence order or contact order made under the "Family Law Act", item (A) does not expressly require that there be an order of any kind, and that this militates in favour of the visa applicant's argument. In items (C) and (D) there are also specific references to orders and to the grant of custody or access by a court. Sundberg J rejected the visa applicant's submissions, observing that:
'… the expressio unius maximmust be applied with caution. … In my view the omission from par (A) of any reference to orders and the inclusion of such a reference in par (B) is just bad drafting. This view is supported by the fact that par (A) refers to "custody or joint custody of, or access to" a child whereas par (C) refers the sponsoring spouse having been granted "joint custody or access by court". Paragraphs (A) and (C) are counterparts, par (C) dealing only with "joint custody" because of the (sole) "custody" dealt with in par (A). The Tribunal was correct in stating that there was "no evidence of custody/access issues". There was no evidence that a court order existed that entitled the applicant to have access to the children.'
32 I take the reference to items (A) and (C) being "counterparts" to imply that if a visa applicant has joint custody, then the sponsoring spouse will also have joint custody. On the other hand, if the visa applicant has sole custody, the sponsoring spouse will not have custody. These propositions may be acceptable as far as they go. However that approach leaves many questions unanswered. Firstly, it assumes that only the visa applicant and the sponsoring spouse have any direct interest in the relevant child. As I have pointed out, there is no requirement that the child be the biological offspring of either of them. The criteria would seem to be wide enough to encompass, for example, the situation in which one of those parties has a child from a relationship with a third party, with which child the other relevant party (visa applicant or sponsoring spouse) has formed continuing links. More significantly, the approach taken in Yazbeck does not explain why, if the visa applicant enjoys access arrangements satisfying item (A), and the sponsoring spouse has sole custody satisfying item (C), the criteria are not satisfied. The inclusion of a residence order as sufficient to satisfy item (D) whilst a custody order will not satisfy item (C) also seems inconsistent. In my view it is more likely that the absence of any reference to orders in item (A) and the inclusion of such references in items (B), (D), (E), and implicitly (C) reflect deliberate decisions than bad drafting. This is particularly so when one asks why bona fide consensus as to a child's welfare should not be sufficient for the purposes of subpar 801.221(6)(c)(ii).
33 The purpose to be served by that sub-paragraph is not clear. As it is found in regulations and not in a statute, there is no equivalent to a second reading speech or explanatory memorandum. However the Tribunal observed at [16] that the purpose of the criteria is to establish whether '… there is a child from the relationship and a court has ruled that there are certain shared rights and obligations in respect of that child.' The criteria seem to require an ongoing relationship between both the visa applicant and the sponsoring spouse on the one hand, and the child on the other. It may be that the criteria are also intended to identify a connection between the child and Australia. If there were no such connection, there would be no reason to allow the visa applicant to stay here. The sponsoring spouse must be an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. An eligible New Zealand citizen (a term defined in reg 1.03) seems to be a person having a right to reside in Australia and/or a history of such residence. Perhaps items (A) and (B) are designed to ensure that the visa applicant has an enduring relationship with the child whereas items (C), (D) and (E) are designed to ensure that the sponsoring spouse, having some contact with Australia, also has a continuing interest in the child.
34 Subparagraph 801.221(6)(c)(ii) may also reflect, to some extent, the complexities created by the continuing operation of state child welfare legislation such as the Child Protection Act. There may be examples of custody orders being made administratively, and therefore not involving court orders. In any event I see no reason why the Migration Regulations would discriminate, for present purposes, between recognized rights and obligations existing at law, but not evidenced in any order or other "formal" document, and rights and obligations which are so evidenced. Such discrimination would encourage unnecessary litigation.
35 It is, I think, very difficult to understand precisely the circumstances with which each of items (A) to (E) is intended to deal or how those items inter-relate, if at all. I doubt whether it is possible to do better than to give each item its natural meaning, unless some absurdity results.
36 Sundberg J concluded that item (A) was intended to deal with custody and access orders made under the Family Law Act prior to the 1995 amendments and that item (B) was intended to relate to orders made under that Act as amended. However, as his Honour pointed out, pursuant to cl 2 of Sch 2 to the 1995 Act, custody and access orders in force under the Act in its previous form were to have effect as if they were residence and contact orders made under the amended Act. In my view item (B) would apply to both residence and contact orders made under the amended Act and custody and access orders made prior to the amendment. Item (A) must therefore have been intended to deal with custody and access arrangements not arising under the Family Law Act.
37 Sundberg J also concluded that s 66C of the Family Law Act did not create an obligation which would satisfy the requirements of item (E). As I have demonstrated, there are also maintenance obligations under state law. His Honour considered that:
'An "other formal maintenance obligation" may be assumed by agreement between spouses that one of them will make specified provision for the maintenance of a child.'
and that:
'If the duty imposed by s 66C(1) were a "formal maintenance obligation", pars (C) and (D) would be rendered unnecessary as would the first limb of par (E). Any applicant whose relationship with a sponsoring spouse had ceased, and who satisfied par (A) or par (B) would, as a result s 66C(1), automatically satisfy the second limb of par (E). This would be an absurd result which is avoided by the approach I favour.'
38 There is a potential ambiguity in this passage. The observation that 'Any applicant … would, as a result of s 66C(1), automatically satisfy the second limb of par (E)', might (wrongly) imply that item (E) looks to the visa applicant's financial relationship to the child, rather than to that of the sponsoring spouse's. That error was made by the Tribunal in the present case. However it is more likely that his Honour meant that such a visa applicant would satisfy item (E) because his sponsoring spouse did so. Taking this latter view, I nonetheless disagree with his Honour's conclusion. It assumes that the relevant child, for the purposes of subpar 801.221(6)(c)(ii), must be the biological (or perhaps adopted) child of either the visa applicant or the sponsoring spouse. If it be accepted that there is no such requirement, and that orders for custody may be made under state legislation (or, for that matter, under s 64C of the Family Law Act) in favour of non-parents, it is clear that a sponsoring spouse may satisfy item (C) or (D) but not be subject to s 66C. The terms of s 66D (dealing with step-parents) suggest that the word "parents" in s 66C excludes step-parents and, inferentially, all but biological or adoptive parents.