Fitch v Migration Review Tribunal

® there has been domestic violence committed by the sponsoring spouse; or

® the visa applicant and the sponsoring spouse both have ongoing connections with a child.

4 The applicant relies upon the second limb. The only matter in dispute is whether the applicant satisfies par 801.221(6)(c) of the Migration Regulations which relevantly requires that: 'either or both of the following circumstances applies: (i) … (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.' To satisfy subpar 801.221(6)(c)(ii), a visa applicant must satisfy items (A) or (B) thereof, and the sponsoring spouse must satisfy one of items (C), (D) and (E) in relation to the same child. There is no requirement that the child in question be an offspring of the relationship between the visa applicant and the sponsoring spouse or that either of them be a biological parent of the child.

Facts 5 The applicant is a British national. The sponsoring spouse for the purposes of his applications for Subclasses 820 and 801 visas was, and is, Sonya Hose, an Australian citizen. On 15 April 1999 a son was born of their relationship, Samuel Monty Fitch. The relationship between the applicant and Ms Hose ended in September 2002. According to the applicant: 'I see Sam on Tuesdays, Thursdays and alternate weekends and also contribute to the finances for his lifestyle at his mother's home.' 6 Ms Hose said: 'Simon Fitch, the father of our child Samuel Monty Fitch is in regular and consistent contact with Samuel. Simon spends every Tuesday evening and when circumstances allow every Thursday evening with Sam, as well as having Sam in his care on alternate week-ends from Friday afternoon to Sunday afternoon. Simon also contributes financially while Sam is in my care. These arrangements have been made informally and amicably between us, and in the best interests of Sam's emotional and physical well being.'

The decision of the Tribunal 7 In the Tribunal, the applicant asserted that he satisfied item 801.221(6)(c)(ii)(A), and that his sponsoring spouse satisfied item 801.221(6)(c)(ii)(E). The Tribunal observed at [25] - [27] of its reasons: '25. The visa applicant and his former de facto spouse have provided a statutory declaration stating that they have an informal agreement which allows the visa applicant access to his son and that he also contributes financially to his upkeep. It was further stated that the visa applicant and his former de facto spouse believe it is in the best interest of the child if the visa applicant was to remain in Australia. Despite repeated requests to provide additional material to evidence the custody arrangements no such material has been put before the Tribunal. In the letter dated 8 April 2004 the visa applicant refers to having sought a solicitor's advice, but provides no further information as to any official arrangements in relation to joint custody of the child. 26. There is no evidence before the Tribunal that a Court order under the Family Law Act 1975 has been made granting the visa applicant joint custody or access. Nor is there evidence of a residence order made under the Family Law Act 1975 or that the visa applicant has an obligation under a child maintenance order made under the Family Law Act 1975 or any other formal (and accepted) maintenance obligation. 27. Having had regard to all the material and evidence before it, the tribunal finds the visa applicant does not meet the requirements of subclause 801.221(6)(c)(ii). The Tribunal finds the visa applicant does not satisfy the requirements of clause 801.221 of the Regulations and is therefore not eligible for the visa he is seeking to have granted.' 8 The Tribunal apparently considered that:

® to satisfy item 801.221(6)(c)(ii)(A), a visa applicant must have custody or joint custody of, or access to a relevant child pursuant to a court order or other "official arrangements";

® item 801.221(6)(c)(ii)(E) addresses obligations of the visa applicant rather than the sponsoring spouse; and

® for the purposes of that item, the relevant maintenance obligation must be pursuant to an order under the Family Law Act 1975 (Cth) (the "Family Law Act") or some '… other formal (and accepted) maintenance obligation'.

Grounds FOR REVIEW 9 The applicant submits that the Tribunal erred in its interpretation of items 801.221(6)(c)(ii)(A) and (E) in that:

® a visa applicant may satisfy item (A) if he or she has custody, joint custody or access to a relevant child under informal arrangements;

® the alternative criteria in items (C), (D) and (E) concern the sponsoring spouse, not the visa applicant; and

® the sponsoring spouse may satisfy item (E) if he or she has a legal obligation to maintain a relevant child even if such obligation is not reflected in a court order or other formal arrangement specific to the particular case.

10 The Minister concedes that the second ground constitutes a valid criticism of the Tribunal's decision but submits that the applicant's visa application would, in any event, have failed for other reasons.

Custody, Joint Custody or Access 11 The term "custody" is defined in reg 1.03 of the Migration Regulations to mean: '(a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.' 12 At this point it is necessary to refer to s 61C of the Family Law Act which provides: '(1) Each of the parents of a child who is not 18 has parental responsibility for the child. (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying. (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).' 13 The expression "parental responsibility" is defined in s 61B as follows: 'In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.' 14 Although the definitions of "custody" in the Migration Regulations and "parental responsibility" in the Family Law Act, may not be precisely the same, they substantially overlap. Both refer to pre-existing rights and obligations. They do not purport to create new rights or obligations. There can be little doubt that both terms express the same core concept. 15 Section 61C applies to both legitimate and illegitimate children and to both parents of each such child. This reflects provisions such as those contained in the Status of Children Act 1978 (Qld), subs 3(1) of which provides that: 'For all the purposes of the law of the State, the relationship between every person and the person's father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly.' 16 The Commonwealth's power to legislate concerning illegitimate children is derived from referrals of power by the various states and territories. In Queensland, the relevant Act is the Commonwealth Powers (Family Law - Children) Act 1990 (Qld), (the "Commonwealth Powers Act"). Subsection 3(1) provides: 'The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth - (a) the maintenance of children and the payment of expenses in relation to children or child bearing; (b) the custody and guardianship of, and access to, children; (c) the determination of a child's parentage for the purposes of the law of the Commonwealth, whether or not the determination of the child's parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth.' 17 Subsection 3(2) limits the referral so as to preserve the operation of certain provisions contained in Queensland statutes. They are set out in the Schedule to the Commonwealth Powers Act. Amongst those provisions are provisions of the Child Protection Act 1999 (Qld) (the "Child Protection Act"). 18 Section 69ZK of the Family Law Act provides that: '(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless: (a) the order is expressed to come into effect when the child ceases to be under that care; or (b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained. (2) Nothing in this Act, and no decree under this Act, affects, (a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or (b) any such order made or action taken; or (c) the operation of a child welfare law in relation to a child. (3) If it appears to a court having jurisdiction under this Act that another court or authority proposes to make an order, or to take any other action, of the kind referred to in paragraph 2(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.' 19 Division 7 relates to child maintenance orders. The expression "child welfare law" is defined in s 60D of the Family Law Act to mean: '… a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.' 20 The relevant legislation is identified in Sch 5 to the Family Law Regulations 1984. It includes the Child Protection Act. 21 Section 18 of the Child Protection Act provides that an authorized officer or police officer may, in certain circumstances, take a child into the custody of the "chief executive". This process apparently is administrative rather than judicial. Pursuant to subss 33(10) and (11) of the Acts Interpretation Act 1954 (Qld), the reference to the chief executive is to the chief executive of the department administering the Child Protection Act. Section 59 authorizes the making of "child protection orders", and s 61 identifies types of child protection order. Section 59 is also included in the Schedule to the Commonwealth Powers Act. The orders which can be made include orders as to custody and guardianship. Such orders may be made in favour of the chief executive or some other suitable person other than a parent of the child. 22 Schedule 5 to the Family Law Regulations suggests that other States and Territories have referred similar legislative power to the Commonwealth, subject to the preservation of state or territory legislation concerning children. 23 From all of this, the following propositions emerge:

® pursuant to s 61C of the Family Law Act each of the parents of a child under 18 has parental responsibility for him or her;

® the concept of "parental responsibility" is broadly equivalent to the concept of "custody" used in the Migration Regulations;

® in the case of Queensland and, I infer, other states and territories, the referral of power to legislate with respect to children is subject to the preservation of state legislation dealing with the welfare of children, including provisions which permit custody orders to be made in favour of persons other than the parents of the relevant child and in some circumstances, permit children to be taken into custody without court orders.

24 In the present case, to identify the content of the definition of custody in the Migration Regulations, one must look to relevant law outside of those regulations, including the Family Law Act. The Family Law Act, in turn, looks to the general law, including statute law. It follows that the present applicant has parental responsibility for his child, including either custody or joint custody of him. I see no reason to conclude that the informal arrangements in place between him and his sponsoring spouse make any difference to the custody situation. If parental responsibility or custody were a matter of strict rights in the usual sense, they could be bargained away. These concepts, however, are more about obligations than rights. Such "rights" as there may be exist only to facilitate the discharge of obligations. For present purposes, and subject to my consideration of the decision of Sundberg J in Yazbeck v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 458, I conclude that the applicant satisfies item 801.221(6)(c)(ii)(A). 25 In those circumstances, it is not necessary to address the question of access. However I note that the term is not defined in the Migration Regulations. It is a term which has been traditionally used to describe the arrangements for contact between a non-custodial parent and his or her child. Subject once again to my consideration of the decision in Yazbeck, I see no reason to conclude that access arrangements must be pursuant to a court order if they are to satisfy item (A).

Maintenance Obligation 26 Items C, D and E are alternatives. Only item (E) is presently relevant. There can be little doubt that a parent has a common-law responsibility to maintain his or her child. In Queensland, s 286 of the Criminal Code provides: '(1) It is the duty of every person who has care of a child under 16 years to- (a) provide the necessaries of life for the child; and (b) take the precautions that are reasonable in all the circumstances to avoid danger to the child's life, health or safety; and (c) take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not. (2) In this section: "person who has care of a child" includes a parent, foster parent, step parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.' 27 Similarly s 15 of the Maintenance Act 1965 (Qld) provides: 'Where the court, upon complaint made on behalf of a child whose parents were not married to each other at the time of its conception and have not since married each other is satisfied - (a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that the mother is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by the mother; the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable.' 28 Similar provisions apply to the fathers of illegitimate children and parents of legitimate children. These sections assume pre-existing obligations to maintain the children in question. At all material times, the sponsoring spouse bore the obligation imposed by the Criminal Code and recognized by the Maintenance Act, with or without s 61C of the Family Law Act. Section 66C of the Family Law Act may also be relevant. It provides: '(1) The parents of a child have, subject to this Division, the primary duty to maintain the child. (2) Without limiting the generality of subsection (1), the duty of a parent to maintain a child: (a) is not of lower priority than the duty of the parent to maintain any other child or another person; and (b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support: (i) himself or herself; or (ii) any other child or another person that the parent has a duty to maintain; and (c) is not affected by: (i) the duty of any other person to maintain the child; or (ii any entitlement of the child or another person to an income tested pension, allowance or benefit.' 29 To my mind, these various requirements constitute a "formal maintenance obligation" imposed upon the sponsoring spouse. Thus I am inclined to the view that for present purposes, the sponsoring spouse satisfies the requirements of item 801.221(6)(c)(ii)(E), again subject to consideration of the decision in Yazbeck.

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.

Conclusion 39 In my view the visa applicant satisfies item (A) by virtue of his being entitled to custody of the child. His sponsoring spouse satisfies item (E) by virtue of her obligations under ss 61C and 66C of the Family Law Act and the provisions of Queensland law to which I have referred. In reaching these conclusions, I reluctantly differ from the conclusion reached by Sundberg J in Yazbeck. I appreciate that in so doing, I create difficulties for the Tribunal and for all involved in applications for visas of the kind in question. However it is at least arguable that his Honour's decision in Yazbeck was based upon the evidentiary shortcomings of the applicant's case and that his views as to the meaning of the relevant analogue of subpar 801.221(6)(c)(ii) did not form part of the ratio of the decision. It seems, also, that his Honour did not have the benefit of argument on the wider aspects of the matter to which I have referred. I conclude that the Tribunal failed to appreciate the question which it was called upon to address and in those circumstances, fell into jurisdictional error. The decision should be set aside and the matter remitted to the Tribunal for further consideration in accordance with law. The second respondent should pay the applicant's costs of the application.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Date of Hearing: 27 October 2004, 2 December 2004