1506034 (Migration)

[2016] AATA 3345

1506034 (Migration) [2016] AATA 3345 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Celeste Shackleton

VISA APPLICANTS:  Mrs Johanna Petronella Sammons
Mr Alan Reginald Sammons

CASE NUMBER:  1506034

DIBP REFERENCE(S):  OSF2013/081582

MEMBER:Hugh Sanderson

DATE:26 February 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision to not to grant the applicants a Contributory Parent (Migrant) (Class CA) visa.

Statement made on 26 February 2016 at 11:19am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 March, 2015 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 April, 2013. The delegate refused to grant the visa on the basis that the visa applicants did not meet the balance of the family test in reg.1.05 and therefore did not satisfy the criteria in cl.143.213.

3. The balance of the family test in reg.1.05 states as follows:

   (1)  For the purposes of this regulation:

   (a) a person is a child of another person (the parent) if the person is a child or step-child of:

   (i) the parent; or

   (ii) a current spouse or current de facto partner of the parent; and

   (b) if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child's last known usual country of residence.

   (2) For this regulation:

   (a)  a child of the parent is an eligible child if the child is:

   (i)   an Australian citizen; or

   (ii)  an Australian permanent resident usually resident in Australia; or

   (iii) an eligible New Zealand citizen usually resident in Australia; and

   (b)   any other child of the parent is an ineligible child.

   (2A) An ineligible child is taken to be resident overseas.

   (2B)  The overseas country in which an ineligible child is taken to reside is:

   (a)  the overseas country in which the child is usually resident; or

   (b)  the last overseas country in which the child was usually resident; or

   (c)  if the child no longer has a right of return to the country mentioned in paragraph (a) or (b) — the child’s country of citizenship.

   (2C)  A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.

   (2D)   However, if the greatest number of children who are:

   (a)      ineligible children; and

   (b)      usually resident in a particular overseas country;

   is less than the number of eligible children, then the parent satisfies the balance of family test.

   (3)   In applying the balance of family test, no account is to be taken of a child of the parent:

   (a)   if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or

   (b)   if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or

   (c)  if the child:  

   (i)  is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and

   (ii)  is registered by the Commissioner as a refugee.

4. The definition of “custody” in the regulations states as follows:

   custody, in relation to a child, means:
   (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.

Background

1. The first named visa applicant (hereinafter “the wife”) was born in South Africa and is currently 63 years old. She currently resides in Canada. The second named visa applicant is her husband (hereinafter “the husband”). He is a citizen of South Africa and is currently 68 years old. The review applicant is the visa applicants’ daughter. At the time of the application, she held a subclass 856 Employer Nomination Scheme visa and had the right to reside in Australia. She became an Australian citizen on 25 July, 2013.

2. The wife disclosed that she and her husband had the following children:

Name	Current age	Place of residence
Celeste	35	Australia
Marcel	33	South Africa
Lezette	50	Whereabouts unknown
Donald	46	Whereabouts unknown

1. It was stated that Celeste and Marcel were the children of the relationship of the visa applicants. Lezette and Donald were children of the husband’s first marriage to Jacomina Sammons. The applicant provided a copy of a court order from the Supreme Court of South Africa dated 23 April, 1974 which stated as follows:

   That the bonds of marriage subsisting between the Plaintiff (Alan Sammons) and the Defendant (Jacomina Sammons) be and are hereby dissolved;

   That the custody of the two minor children be and is hereby awarded to the Defendant with reasonable access to the plaintiff to the said children including, inter alia, the right to have time with him during every second weekend and during alternate long and short school holidays each year;

   That the Plaintiff pay maintenance to the Defendant for the said children at the rate of R30.00 per month for each child.

2. A letter was provided from Clarks Attorneys of Johannesburg, South Africa, dated 23 April, 2013 where the following was claimed:

   ·     Following the divorce, Mr Sammons’ former wife frustrated any attempts by him to have contact with his children and after seeing them on one occasion all ties Mr Sammons had with his children were severed;

   ·     It was not known what, if any, attempt was made by Mr Sammons to enforce his access rights;

   ·     At the time the orders were made, there was a “maternal preference rule” which created a legal presumption that the children were better off with their mothers;

   ·     Mothers were invariably granted the custody of the children and residuary guardianship was automatically retained by both parents;

   ·     In the opinion of the attorneys, if the mother severed the ties between the children and their father and the father did not have any contact with the minor children the effect of this was that the father had no further parental rights other than residuary guardianship which was very limited; and

   ·     Effectively, the father was deprived of any and all rights of custody over his children and this would amount to removal of “exclusive custody”.

3. It was submitted from the review applicant’s agent that the effect of the orders made on 23 April, 1974 was that the two youngest children of Mr Sammons had been removed by court order, by operation of law (other than in consequence of marriage), from the exclusive custody of the parent and therefore the children should not be taken into account in accordance with reg.1.05(3)(a).

10.The delegate who considered the application noted the following issues:

·     No evidence had been provided of any further orders made in South Africa with respect of the children, including any evidence of Mr Sammons exercising or enforcing his rights of access to the children, participating in their lives, providing maintenance, or attempts to contact them;

·     The orders made in South Africa granted Ms Sammons custody which gave her the daily care and control of the children, however, both parents retained the right and responsibility to make decisions concerning the daily care and control of the children and Mr Sammons was granted specific access rights;

·     The orders made in South Africa do not provide that Ms Sammons was granted sole custody to the exclusion of all others as it allowed Mr Sammons access to the children;

·     Mr Sammons may have chosen not to exercise that right of access or be involved in decisions of the children’s lives, but that does not amount to having the children removed from his custody by a court of law;

·     Although there may have been practical difficulties in enforcing access rights, there is no evidence that Mr Sammons did attempt to enforce those rights or that he had been refused by the courts a right to have access to the children;

·     The parental rights of Mr Sammons had not been severed by a court order and therefore the circumstances of Lezette and Donald must be included in the balance of family test assessment; and

·     As the visa applicant claimed the whereabouts of these two children were unknown, they are considered to continue to reside in South Africa.

11.Based on these considerations, the delegate concluded that the visa applicants did not meet the balance of family test assessment in reg.1.05 as they had more children who did not reside in Australia than resided in Australia. Accordingly, the delegate found that the visa applicant did not meet the criteria in cl.143.213 and refused the application.

The hearing

12.The husband appeared before the Tribunal by telephone link on 15 December, 2015 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing and made submissions.

13.The husband stated that the orders made after the breakdown of his marriage to his first wife were done by agreement after negotiations through their respective lawyers. He said that his first wife had left him taking the children and he had commenced the proceedings in which he also sought an order for custody of the children. He said that he was advised by a number of lawyers that he would not be successful in getting custody of the children which was why he agreed to the orders awarding custody to his first wife.

14.The husband stated that after he separated from his first wife he only had contact with his children for one holiday period of about four or five days about a year after the divorce had been granted. He said that this had been arranged by his former wife contacting his mother. He said that he had no other contact with his former wife she appeared to be moving around the country so that he could not locate her. He said that he had contacted her lawyers, however, they also said they had no contact with her.

15.The husband stated that he did not take any action to enforce the right to have the children with him every second weekend and alternate school holidays. He said that this was because he did not know where his former wife was. He said that he took no action through the courts to try to locate his former wife or to enforce his access rights. He said that he continued to pay child maintenance for the children, depositing money into the bank account provided by his former wife.

16.The husband stated he had recently seen his two children after he returned to South Africa about three months prior to the hearing. He said that he located his son’s telephone number and called him. He was invited to meet his children in Johannesburg in his daughter’s home. His former wife was present at the time he met his children. He said that it was the first time he had seen his children in about 40 years. He said that during the conversation they resolved a number of issues but they did not intend to continue any contact with each other.

17.The husband said that he had no contact with his children after the court orders were made and was not able to make any decisions in their lives. He said that he did not know where they were living because their mother kept on moving. He said that he made the decision that he would focus on his second marriage and children from that relationship as he had been cut off from any relationship with his children from his first marriage. He said that it would be unfair to include his first two children as part of his family as he did not have any continuing role in their lives after the court orders were made.

Submissions and further information

18.The review applicant’s agent made the following submissions:

·     The custody order placed the children in the day-to-day care and control of the mother and therefore this extinguished any right of custody to the father;

·     The order of custody is analogous to an adoption order;

·     It would be unfair to count the children in applying the balance of family test as the applicant has had no contact with them and was not able to exercise access to the children apart from four or five days of actual access;

·     Even if the father did exercise access regularly, the operative orders exclude his rights of custody and therefore the children should not be included in the test;

·     The rights of guardianship that the father may have retained are not equivalent to custody and therefore did not affect whether the children are included in the balance of family test.

19.The review applicant’s agent requested more time to provide a further advice from a South African barrister as to the effect of the orders made in South Africa as to custody and the definition of guardianship in South African law. The following issues were also to be addressed in submissions that were to be provided:

·     How would it have affected whether the children were to be included in the definition of the balance of family test if the same orders had been made in South Africa however the applicant did enforce his rights to have regular access to the children and that he maintained a good relationship with them?

·     What is the effect of the words “other than in consequence of marriage” in the regulations when considering the phrase that the child has been removed by court order, by adoption, or by operation of law (other than in consequence of marriage)?

·     What is the effect of the words requiring the child to have been removed “from the exclusive custody of the parent” and whether this requires the children to have been in the applicant’s exclusive custody before being transferred to the exclusive custody of the mother when prior to the orders the parents retained joint custody of the children?

20.The review applicant’s agent provided two letters from Deanne Kahn, Attorneys in South Africa both dated 21 January, 2016 providing advice as to various aspects of family law in South Africa. In these letters, the following was claimed:

·In the case of Calitz v Calitz 1939 AD 56 the court stated that it “has no jurisdiction, where no divorce or separation authorising the separate home has been granted, to deprive the father of his custody except under the court’s power as upper Guardian of all minors to interfere with the fathers custody on special grounds such for example a danger to the child’s life, health or morals”;

·As this common law assessment meant that where parties were merely living apart, without divorce or a formal decree of judicial separation, s5(1) of the Matrimonial Affairs Act 1953 was introduced allowing “either parent of a minor” who were living apart to seek an order for sole guardianship or sole custody of the minor;

·There was a general rule that if their parents had separated, young children would be placed in the custody of their mothers;

·The non-custodian parent had a right to reasonable access to the children which could be regulated by way of court order;

·The non-custodial parent retained guardianship of the child;

·The case of Hornby v Hornby 1954 (1) SA 498 was cited where it was stated “as a general rule the award of the custody of a minor child to a mother without further rights gives the mother sole control over the person and education of the minor but the father’s power to administer the property of the child, to represent it in court, to assist it in entering into any antenuptial and other contracts is not affected thereby and it still requires the father’s consent to its marriage”.

21.The applicant’s agent made the following submissions:

·While the husband and his first wife were together they retained joint custody of the children;

·The husband had exclusive custody of the children after he and his first wife separated following the decision in Calitz v Calitz;

·After the court orders, the husband lost his exclusive legal custody rights he had acquired after first separating from his first wife; and

·As the husband lost his exclusive legal custody rights of his children, the husband’s children from his first marriage are not members of his family for the purpose of the balance of family test.

22.No submissions were made by the review applicant’s agent as to the effect of the words “other than in consequence of marriage” in the regulations and those words were not used when the agent cited the legislation in their submissions.

23.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

24.The issue in the present case is whether the children from Mr Sammons’ first marriage are included when assessing whether the second named visa applicant meets the balance of family test. The question here is whether they fall within the exception of reg.1.05(3)(a) that no account is to be taken of the child of the parent if the child has been removed by court order by operation of law (other than in consequence of marriage) from the exclusive custody of the parent. It is not disputed that if the children are to be taken into consideration the visa applicants do not meet the balance of family test.

The facts

25.The facts in the matter put by the husband and accepted by the tribunal may be summarised as follows:

·     The husband has two children from his first marriage who remain resident in South Africa;

·     Orders were made, by consent, between the husband and his former wife at the time of their divorce, providing that his former wife being awarded custody of the two children and the husband being given reasonable access to the children, including the defined right to have them during every second weekend and during alternate long and short school holidays each year;

·     No order was made as to the rights of guardianship of the children;

·     The children at the time of the orders were aged 8 and almost 5 years old;

·     The husband saw his children on only one occasion while they were minors after the making of these orders for about four or five days about a year after he and his wife separated;

·     The husband was prevented from having any contact with his children due to the actions of their mother and he did not know where they were living;

·     The husband took no action in the courts to enforce his right of access to the children;

·     The husband continued to pay child maintenance to the children’s mother, despite the fact that he was not exercising any contact with them or knew where they were living;

·     The husband took no steps to vary the existing orders and no further court orders were made with respect to the children; and

·     The husband has recently been able to contact his children again and meet them, however, there does not seem to be any ongoing relationship with them.

Interpretation of reg.1.05(3)(a)

26.The relevant section of the regulations when considering this application states as follows:

(3) In applying the balance of family test, no account is to be taken of a of the :

(a) if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent;

27.At the time of the passing of this regulation, there was no explanatory statement provided to give greater understanding of the terminology used. The Acts Interpretation Act 1901 (Cth) requires a construction of the legislation that promotes the underlying purpose of the provision to be preferred over a construction that would not promote the purpose or object of a provision.

28.The department has provided guidelines for its officers when interpreting the regulations. These guidelines of the department do not form part of the legislation and it is a matter for the tribunal to determine how to properly interpret the legislation.

29.There have been no decisions providing judicial guidance for the interpretation of this regulation.

30.Although the regulations provide a definition of “custody” there is no definition of “exclusive custody”. There is also no definition in the regulations of what “in consequence of marriage” refers to in the relevant regulation.

31.The review applicant’s agent has claimed that the orders made in South Africa on 23 April, 1974 meant that the husband’s children from his first marriage had been removed by court order from his exclusive custody. The agent submitted that, following the decision in Calitz v Calitz, after the husband and his former wife separated he had the exclusive custody of their children and the court order then had the effect of removing this exclusive custody from him. The tribunal does not accept this.

32.The decision in Calitz v Calitz only referred to the circumstances of the father of children where the parties had separated. It does not make reference to the rights or obligations of the mother to the children. The portion of the case quoted states that the court had no jurisdiction “to deprive the father of his custody” except for certain circumstances. The same could be said that the court did not have jurisdiction to deprive the mother of her custody of her children. There is nothing in this case which would indicate that there was any automatic change in the legal position of both the husband and the wife as to their position of joint custodian and guardians of their children at the point the parents stopped living together. The parties therefore continued to share the custody of their children until a court order was made changing this legal position.

33.As was stated by the agent in their submissions, when the husband and his former wife were living together they retained the joint custody and guardianship of the children. The former wife left the matrimonial home taking with her the children. The effect of s5(1) of the Matrimonial Affairs Act 1953 was to acknowledge the jurisdiction of the court to make orders as to custody, guardianship and access of the children when their parents are living apart which would be in the best interests of the children. There is no recognition that immediately upon separation the father automatically assumes the sole custody and guardianship of any children to the exclusion of the mother.

34.Similarly, the reference to the “maternal preference rule” did not provide any common-law or other principal that meant that after separation or at any time prior to any court orders being made that the mother had any superior or exclusive right of custody over the children. The “maternal preference rule” was only used as a guide when judicial officers were determining whether any order for sole custody should be ordered in favour of the mother or the father of a child.

35.The effect of the consent orders made by the parties on 23 April, 1974 was to change the existing legal shared rights and responsibilities of the husband and his former wife. Prior to the orders being made, the husband and his former wife were the joint custodians and guardians of the children both when they were living together and immediately after they had separated. After the orders were made the former wife was granted custody of the children. As no order was made as to guardianship, the husband and his former wife retained the responsibilities of guardianship of the two children. At no time did the husband ever have the exclusive custody of his children as prior to the orders being made he had joint custody of the children shared with his former wife.

36.The orders that were made by consent are not analogous to an adoption order. The husband was still legally considered the father of the children and he retained his rights and obligations as the children’s guardian. He continued his responsibility to assist and support of the children by paying child maintenance to their mother. Specific orders were made for him to have access to the children. When a child is adopted, the adopting parent is considered the legal parent of the child and the legal relationship with the biological parents is severed. The child’s birth certificate is reissued with the adoptive parents noted as their parents. This is not the situation with any custody or guardianship order made after the breakdown of marriage.

37.The tribunal does not accept that because the husband did not have any continuing relationship with his children to any extent after the court orders were made that the children should not be included in the balance of family test.

38.The balance of family test is only concerned with the existence of all the children of a visa applicant or their spouse and their geographic distribution. There is no reference in the regulations as to the nature or quality of the relationship between the child or children and their parent or any cultural factors that may affect that elationship. If a visa applicant or their spouse has a child who is not resident in Australia, this child must be taken into account when considering the balance of family test regardless of whether or not the parent has a good or bad relationship with that child or whether or not the parent sees that child regularly or has not seen a child at all for many years.

39.The applicant’s argument is that as a custody order has been made following the breakdown of his marriage to his first wife his children from that relationship are not considered when assessing the balance of family test. If this is accepted then any child who was subject of a custody order would not be taken into account when considering the balance of family test for the non-custodial parent, regardless of the nature of the relationship between that child and the non-custodial parent.

40.In most circumstances, when parties separate both parents maintain a continuing relationship with their children, regardless of whether or not a custody order has been made in favour of one parent or the other. The tribunal notes that the terminology in the Family Law Fact 1975 (Cth) was changed to recognise the continuing duties and obligations of both parents towards their children after the breakdown of a marriage and the misinterpretation that was prevalent where a custody order seen as giving that parent ownership of the child.

41.The reality for many non-custodial parents is that they maintain a close and loving relationship with their children even though the marriage with their partner had broken down. The non-custodial parent would regularly spend time with their children, such as every weekend and during school holidays as the orders made in this case reflect, and the relationship between the non-custodial parent and their children is not adversely affected by the fact that the parents no longer live with each other. The courts, both in Australia and overseas, recognised that the best interest of the children is usually served in their being able to maintain a continuing and positive relationship with both parents.

42.When considering the underlying purpose of the regulation, the tribunal finds that the terminology used is not to promote the concept that if a parent has not been granted custody of their children after the breakdown of the relationship then they lose all relationship with that child and they should not be taken into account.

43.The tribunal has also considered how the words “other than in consequence of marriage” affect the existence of the orders made between the husband and his former wife as to the custody of the children.

44.During the hearing, the tribunal specifically raised the issue of what affect the words “other than in consequence of marriage” had when interpreting the regulation. No submissions were made by the agent in respect of this issue in the submissions provided after the hearing.

45.The words “other than in consequence of marriage” are included in brackets at the end of the three actions whereby the child may be removed from the “exclusive custody of the parent”. These are if they have been removed by court order, by adoption or by operation of law. The tribunal finds that the words “other than in consequence of marriage” must be addressed in respect of all three of those exceptions.

46.When a party marries, this does not lead to their relationship with any child being affected or removed in any way. It is only in consequence of that marriage ending and the parties separating that action may be taken by way of court order to remove the custody of the child from a parent. These proceedings are civil proceedings initiated by either the parents. This was the situation of the husband and his former wife when he initiated proceedings in South Africa which were then settled by consent.

47.A child may be removed by court order from the custody of the parent otherwise than as a consequence of marriage. These circumstances are usually when the court is exercising its welfare jurisdiction as guardian of all minors. This is referred to in the decision of Calitz v Calitz. In those circumstances usually a government agency will take action for the protection of a child or children if there is a danger to the child’s “life, health or morals”. That action may be taken whether the parents are married, living together or have separated. The action taken by the welfare agency is not in consequence of the marriage of the parents but is taken as a consequence of a concern as to the welfare of the child.

48.The tribunal finds that the orders made in South Africa on 23 April, 1974 were in consequence of marriage and therefore those orders are not relevant when considering the provisions of reg.1.05(3)(a).

Conclusion

49.The tribunal finds that the husband never had the exclusive custody of his children from his relationship to his first wife. The tribunal finds that he had shared custody of those children with his first wife until he entered into the consent orders. Further, the tribunal finds that the orders made by consent granting the husband’s former wife the custody of the children were made in consequence of the husband’s marriage to his former wife. As such, the tribunal finds that the court order, as it was in consequence of the marriage of the husband and his former wife and did not remove the children from the exclusive custody of the husband, is not included when considering the exclusions to the balance of family test in reg.1.05(3). Accordingly, the children of the husband’s first marriage are to be taken into account when applying the balance of the family test.

50.As the visa applicant and her husband have three children who do not live in Australia and only one child who resides in Australia the visa applicant does not satisfy the balance of the family test and therefore does not meet the criteria in 143.321. Accordingly, the decision of the department to refuse the application must be affirmed. As the visa applicant does not meet the criteria for the grant of the visa, the decision to refuse the application for the husband must also affirmed. There is no information before the tribunal that the applicant would meet the criteria for the grant of any other visa.

DECISION

51.The tribunal affirms the decision to not to grant the applicants a Contributory Parent (Migrant) (Class CA) visa.

Hugh Sanderson

Member