Family Law Council Terms of Reference

Submission by the Refugee and Immigration Legal Service

  1. Introduction
  2. The Refugee and Immigration Legal Service thanks the Family Law Council for this opportunity to provide a submission on the issues in relation to who is considered to be a parent of a child under the Family Law Act 1975 (Cth).
  3. The Refugee and Immigration Legal Service Inc. (RAILS) is an independent not-for-profit organisation specialising in refugee and immigration law in Queensland. RAILS has a large caseload of matters that raise issues of parentage, especially cases involving family migration and family reunion.
  4. We will focus our comments on the following term of reference:

-Are there any amendments to the Family Law Act that could be made to assist other Commonwealth agencies, such as those responsible for immigration, citizenship and passports, to identify who the parents of a child are for the purposes of Commonwealth laws?

1.4Our submission will highlight those areas that have arisen in our caseload. In brief, our recommendations are that the FLA and the Migration Act and Migration Regulations are amended to provide greater clarity in the operation of the presumptions of parentage and parentage testing procedures in migration proceedings.

  1. The current definition of parent in the Migration Act and Migration Regulations
  2. Child-parent relationships are defined in both the Migration Act1958 (Cth) and the Migration Regulations 1994 (Cth). The relevant definitions in the Migration Act are:

-S 5(1) – Child

-S 5CA – Child of a person

-S 5(1) – Parent

2.2The relevant provisions in the Migration Regulations include:

-R 1.14A – Parent and child

-R 1.03 – Step child

-R 1.03 – Dependent child

2.3The above parent-child definitions are interrelated. They are also partly related to the definition of child in family law. ‘Parent’ is defined in the Migration Act to include a person who is a parent of a ‘child’ as defined in s 5CA. Section 5CA(1)(a) says that a person is the child of another if the person is a child within the meaning of the Family Law Act 1975, with the exception of a child who is adopted within the meaning of the FLA. The same section says that the Migration Regulations may make additional provisions regarding child-parent relationships.

2.4The link to the FLA allow children of same sex relationships to be recognised as a ‘child of a person’ under the Migration Act. Furthermore, the Department of Immigration’s Procedures Advice Manual confirms that a child whose parents are not, and have not been, in a partner relationship is a child of each of those parents for most FLA purposes and, it follows, for the purposes of migration law.[1] Departmental policy also recognises that the FLA’s modification of the meaning of ‘parent’ for artificial conception procedures including surrogacy arrangements is relevant in determining who is a child of a person for migration law purposes.[2]

2.5A person who is an adopted child within the meaning of the Migration Act is also a ‘child of a person’ (s 5CA(1)(b)). Adoption is defined in the Migration Regulations to include customary adoption (reg 1.04(1)(c)). The different treatment of adoption under immigration law was explained at the time of the introduction of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008:

49 In addition to the common law meaning of adoption, the migration visa programme currently recognises customary adoption in specific circumstances where formal adoption arrangements are not available or reasonably practicable under the law of the place where the arrangements were made and it occurs in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter. Customary adoption is reflected in the definition of adoption in the Migration Regulations and does not sever the ties with the adoptee’s previous parents, as is the case for formal adoption. This amendment will ensure that a child who is recognised as having been customarily adopted for the purposes of the Migration Regulations through the migration visa programme will be recognised as a child of both the child’s previous parent/s and adoptive parent/s for the purposes of the Migration Act.[3]

  1. Issues with the application of presumptions of parentage and testing procedures in migration matters
  2. While RAILS generally supports the ongoing interrelationship between the FLA and Migration Act definitions of child-parent relationships (with the exception of the recognition of customary adoption in the Migration Act and Migration Regulations), RAILS considers that our clients would benefit from greater clarity in the Migration Act and Migration Regulations in relation to the application of presumptions of parentage and testing procedures in the visa application process.
  3. Currently, Departmental policy states that ‘under policy, for claims of biological child-parent relationships, the general principle that applies in Australian family law applies in migration law.’ Departmental policy then immediately goes on to state that if there are significant doubts about a claimed biological child-parent relationship, officers may wish to consider DNA testing.[4]
  4. DNA testing is said to be a ‘last resort’ and should not be used if officers would ordinarily approve a case on the available documentation by giving the benefit of the doubt to the applicant.[5] DIAC’s DNA testing policy also recognises that the costs of testing may be prohibitive for some applicants and that for others there may be cultural issues, describing it not as a legislative criterion but rather just another form of evidence.[6]
  5. In our experience, certain caseloads are being required to provide DNA testing by Department officers as an instance of first resort. Little or no weight is given to the presumptions of parentage found in the FLA: Overreliance on DNA testing is a substantial barrier to impecunious clients, many of whom are refugees living in hostile environment, e.g. Quetta, Pakistan, and face further substantial obstacles in accessing DNA testing procedures. The following illustrative case study is taken from recent files with the identifying features of the clients removed to preserve confidentiality.

Case study

A mother and her children fled their home country due to persecution and currently live in a neighbouring country which is hostile to their ethnic group. The husband travelled ahead to Australia and received a Protection Visa. He and his wife have been married for 18 years and have a number of children. The husband seeks to sponsor his wife and children under a partner visa application.

The mother and children wish to be reunited with their husband and father and despite extreme difficulties and costs they obtained documentation required by legislation to prove their relationships (such as a certificate of marriage, birth certificates of the children, photos, statutory declarations of friends and family, phone records, national police certificates etc).

The DIAC case officer is not satisfied with the provided information and requests further evidence, beginning with DNA evidence for each child. The requests put an enormous financial and evidentiary burden on the family as they are forced to pay for two paternity tests ($AUD2,300) and must undertake a dangerous journey to the country’s capital to have their tests undertaken under the supervision of Australian embassy staff.

This is despite the fact that the husband consistently declared his family members to the Department in his Protection Visa application, at his interview, in his statutory declarations and in a previous humanitarian application. In addition, he provided evidence of continual contact with his family by phone, travel, and sending money. They have been in a declared union for over 18 years.

3.5This case study illustrates the importance, in our view, of greater statutory guidance in the following areas:

-the application of presumptions of parentage under the FLA to migration proceedings, especially the presumptions arising from marriage;[7] findings of a court;[8] instruments acknowledging paternity;[9] and registration of birth[10] in overseas jurisdictions;

-the circumstances in which Department officers can require applicants to have recourse to costly parental testing procedures in migration proceedings (and other Commonwealth officials operating in jurisdictions involving vulnerable and impecunious clients), including the operation of the ‘balance of probabilities’ principle in the FLA and the principle of ‘last resort’ in DIAC policy;[11] and

-the proper procedure to apply to clients from diverse backgrounds where DNA testing is deemed to be necessary (e.g. the issue of consent and the ramifications for the applicant if consent is not forthcoming),[12] including the relevance of the parentage testing procedure set out in the Family Law Regulations 1984 (Cth).[13]

  1. Conclusion
  2. In summary, we recommend that amendments should be made to the FLA and the Migration Act and Migration Regulations in order to:

-define the application of presumptions of parentage under the FLA to migration proceedings

-make clear that DNA testing is a ‘last resort’ in the visa application process

-put in place appropriate safeguards to ensure proper respect for diversity when parentage testing procedures are required as part of the visa application process

4.2Please contact us if you would like to discuss this submission further.

Angus Francis, Principal Solicitor
Raquel Aldunate, Director

Refugee and Immigration Legal Service

1

[1]PAM3: Act – Act-defined terms – s 5G – Relationships and family members – Child-parent relationships, para. 10.

[2]Ibid, para. 11.

[3]Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Laws – General Law Reform) Bill 2008, Supp EM.

[4]PAM3: Act – Act-defined terms – s 5G – Relationships and family members – Child-parent relationships, para. 12.

[5]Ibid.

[6]PAM3: Div 1.2/reg 1.12 – Member of the family unit – DNA Testing.

[7] (CTH)Family Law Act 1975s69P. For the definition of ‘child of the marriage’ see ibid ss 4(1), 60F. Reference to a ‘child of the marriage’ includes a child:

  1. who has been adopted by either of the parties to the marriage (with the consent of the other) or both of them;
  2. of the husband and wife born before the marriage;
  3. born as a result of artificial conception procedures while the husband and wife were married; and
  4. of a marriage which has been dissolved, annulled (whether in Australia or elsewhere) or terminated by the death of one of the parties to the marriage (ibid ss 60F(1), 60F(2), 60H(1)).

[8] Prescribed overseas jurisdictions are listed in (CTH)Family Law Regulations 1984Sch 2.

[9] (CTH)Family Law Act 1975s 69T(a).

[10] (CTH)Family Law Act 1975s69R.

[11] (CTH)Family Law Act 1975s 69U(1); By contrast, the standard of proof for rebutting the common law presumption is ‘beyond reasonable doubt’ In the Marriage of J and P(1985) 10 Fam LR 490; 80 FLR 126 at 130; (1985) FLC 91-624;Connolly v Connolly (No 2)[1967] 1 NSWR 8; (1966) 9 FLR 218; 85 WN (Pt 1) (NSW) 149.

[12] (CTH)Family Law Act 1975s 69Z(2).

[13] (CTH)Family Law Regulations 1984Pt IIA. See alsoRe C (No 1)(1991) 15 Fam LR 350; 104 FLR 436; (1992) FLC ¶92-283 per Fogarty J(effect of noncompliance with the regulations).