Case: Fitch v Migration Review Tribunal [2004] FCA 1673
Outcome: applied
As emerged at the hearing on 7 June 2006, the appellant's main argument (in substance, the only ground now pursued) is that he satisfies items (A) and (E) of clause 100.221(4) of Schedule 2 of the Regulations and that the Tribunal and Federal Magistrate erred by failing to ask the necessary questions and ignored relevant material, namely provisions of the Family Law Act 1975 (Cth) ("Family Law Act") and the Child Support (Assessment) Act 1989 (Cth) ("Assessment Act"). The appellant relied on the decision of Dowsett J in Fitch v Migration Review Tribunal [2004] FCA 1673. 30 The appellant's argument is as follows. In relation item (A), the appellant relied on s 61C and s 61D of the Family Law Act . Under s 61C(1) of the Family Law Act , a parent has parental responsibility for a child to the extent that it is not displaced by a parenting order of the Court, and under s 61C(2) , that legal position is not affected by changes in the nature of the parents' relationship, such as separation. Section 61B explains what parental responsibility means. Section 61D sets out the effect of a parenting order. Since there was no evidence before the Tribunal of any court order affecting the appellant's parental responsibility, the Tribunal should have taken as given that it was intact and he had joint custody of his daughter. 31 The minute of 27 May 2006 was also said to be relevant to item (A). It was submitted that the Tribunal should have drawn the inference from the sponsor's statement she was now living with the appellant that their young daughter would also be living with them. On that basis, the Tribunal should have concluded that not only did the appellant have parental responsibility, but also that by living with her he was necessarily exercising a measure of day to day care for the daughter's welfare and development. He therefore satisfied item (A). 40 The second decision is Fitch . In that case, the Minister's delegate refused to grant the visa applicant a Subclass 801 visa, a permanent spouse visa. At the time of the decision whether to grant the visa, an applicant must satisfy clause 801.221(1) of Sch 2 of the Regulations which requires that the applicant meets the requirements of one of clauses (2), (2A), (3), (4), (5), (6) or (8). Clause 801.221(6)(c)(ii) is identical to clause 100.221(4)(c)(ii). The applicant's relationship to the sponsor had ended. In the Tribunal, the applicant claimed that clause (6) was satisfied because he satisfied item (6)(c)(ii)(A) and his sponsor satisfied item (6)(c)(ii)(E), in relation to the son of their relationship. There was evidence before the Tribunal, in the form of a statutory declaration, that the applicant and the sponsor had an informal agreement whereby the applicant saw his son on particular days and alternate weekends and contributed financially to his upkeep. The Tribunal found that the visa criteria were not satisfied. It found that there was no evidence before it of a Court order under the Family Law Act granting access, joint custody or residence, nor was their evidence that the applicant had an obligation under a child maintenance order under that Act "or any other formal (and accepted) maintenance obligation" (see [7] of his Honour's reasons). 41 In this Court, the applicant submitted that the Tribunal had erred in its construction of items (A) and (E) in three respects. The Minister conceded one ground, namely that the Tribunal had construed the alternative criteria in items (C), (D) and (E) as referring to the visa applicant rather than the sponsoring spouse. However, the Minister contended that the application would have failed for other reasons. The two other grounds urged by the applicant were (1) that informal arrangements under which an applicant has custody, joint custody or access can satisfy item (A), and; (2) the sponsoring spouse may have a "formal maintenance obligation" for the purpose of item (E) even in the absence of a court order or other formal arrangement. 42 Dowsett J concluded that both items (A) and (E) were satisfied. In relation to item (A), his Honour found that the applicant had "custody" or "joint custody". His Honour considered the definition of "custody" in the Regulations and the definition of "parental responsibility" in s 61B of the Family Law Act , concluding that the two expressed "the same core concept" and neither purported to "create new rights or obligations" (at [14]). His Honour considered that the content of the term "custody" as used in the Regulations depended upon the Family Law Act as well as the general law and other statutes. In that context, his Honour found that "parental responsibility" and "custody" were not matters of strict legal rights but were more in the nature of parental obligations. His Honour said (at [24]): "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." 43 Having found that the applicant had custody or joint custody, it was not necessary to address whether the applicant had "access". However, his Honour noted that the term "access", not defined in the Regulations , was traditionally used to describe contact arrangements between a non-custodial parent and his or her child. His Honour said (at [25]) that "I see no reason to conclude that access arrangements must be pursuant to a court order if they are to satisfy item (A)". 44 In relation to the sponsoring spouse satisfying item (E), his Honour noted the common law responsibility of a parent to maintain a child, which was recognised and enforced by statute (referring specifically to s 286 of the Queensland Criminal Code and s 15 of the Maintenance Act 1965 (Qld)). His Honour noted that at all relevant times the sponsoring spouse was under a statutory obligation to maintain her child, and concluded that such obligation constituted a "formal maintenance obligation". 52 Counsel for the appellant submitted that Fitch established that once a child is born in Australia of parents living in Australia, one of whom in this case is an Australian citizen, that the father and the mother stand in a statutory relationship to that child by virtue of the provisions of the Family Law Act . That statutory relationship obviates the need for a visa applicant to produce evidence of even make submissions in order to satisfy the requirement contained in clause 100.221(4)(c)(ii). It should also be noted that counsel for the appellant submitted that Dowsett J's reference to ss 61C and 66C of the Family Law Act was incorrect as s 3 of the Assessment Act would apply in relation to the child in Fitch as well as in the present case, but nothing turns on that since the provisions are the same in substance. 53 Counsel for the Minister, submitted that Fitch did not go so far as the appellant contended. What Dowsett J concluded was that the level of formality required to satisfy the relevant criteria was not stringent, but not that the statutory relationship between parent and child obviated the need for evidence and submissions. As the Tribunal correctly stated, there had been no evidence before it that the criteria in clause 100.221(4)(c)(ii) were met. The Tribunal could not sensibly have accepted the minute as proof that the appellant had responsibility for the daughter's day to day welfare and that there was a joint custody arrangement. It could equally have been presumed from the minute that the appellant was failing to care for or support their daughter. 54 Counsel for the Minister also submitted that, in any event, Yazbec should be preferred to Fitch. She submitted that, following Yazbec , the Tribunal did not have before it evidence of a formal maintenance obligation and did not err by proceeding to make a decision under s 359A when such information was not forthcoming. The main basis on which it was contended that Yazbec should be preferred was that Sundberg J took a more thorough and orthodox approach to statutory construction, particularly in relation to the term "formal maintenance obligation" in item (E). Counsel contended that the approach of Dowsett J in Fitch gave no meaning to the term "formal", rendering it otiose and with no work to do. This was contrary to a proper approach to statutory construction. It was submitted that Dowsett J did not undertake a proper assessment of the term "formal maintenance obligation" in reaching his conclusion and, in particular, that he did not consider the difference between a maintenance obligation and a formal maintenance obligation, whereas Sundberg J did analyse this issue (at [12]).