The Balance of Family test is designed to determine the extent of the parent’s links to their children in Australia and ensure only those with close ties to Australia are eligible for parent visas. The balance of family test is concerned with the numeric distribution and geographical location of the children of the applicant and the applicant’s partner and, if applicable, of the former partners of either the applicant. The test does not consider qualitative matters such as the closeness or the breakdown of the parent-child relationships or cultural factors dictating which child should take care of an aged parent.
A parent will meet the balance of family test if at least half of the parent’s children and step-children are “eligible children” or there are more “eligible children” than children living in any other single country. In short, “eligible children” include:
- Australian citizens;
- Australian permanent residents usually resident in Australia; or
- eligible New Zealand citizens usually resident in Australia
compared to children who are resident in any other one country
The department will not waive this test, even in compelling or exceptional circumstances.
For example:
- If a parent and their partner have four children, of whom two are Australian citizens and two reside overseas as foreign nationals, the parent will satisfy the test.
- If a parent and their partner have three children, of whom one is an Australian citizen, one is resident in Australia as a temporary visa holder and the third is resident overseas as a foreign national, the parent does not satisfy the test.
You need to pass it if you are applying for one of these visas:
- 103 – Parent
- 143 – Contributory Parent
- 173 – Contributory Parent (Temporary)
- 804 – Aged Parent
- 864 – Contributory Aged Parent
- 884 – Contributory Aged Parent (Temporary)
| Total number of children | Children usually living in Australia | Children in country A | Children in country B | Children in country C | Children in country D | Passes test? |
|---|---|---|---|---|---|---|
| 1 | 1 | 0 | 0 | 0 | 0 | Yes |
| 2 | 1 | 1 | 0 | 0 | 0 | Yes |
| 3 | 1 | 2 | 0 | 0 | 0 | No |
| 3 | 1 | 1 | 1 | 0 | 0 | No |
| 4 | 2 | 2 | 0 | 0 | 0 | Yes |
| 4 | 1 | 1 | 1 | 1 | 0 | No |
| 4 | 1 | 2 | 1 | 0 | 0 | No |
| 5 | 1 | 1 | 1 | 1 | 1 | No |
| 5 | 2 | 1 | 1 | 1 | 0 | No |
| 5 | 3 | 2 | 0 | 0 | 0 | Yes |
| 6 | 2 | 2 | 2 | 0 | 0 | No |
Your children
DHA count all your children, including step children and adopted children.
and will not count them as your children if they:
- are deceased
- have been removed from their parents’ legal custody by adoption or court order
- are registered by the United Nations High Commissioner for Refugees (UNHCR) as refugees and live in a camp operated by the UNHCR
- live in a country where they suffer persecution or human rights abuse and cannot be reunited with their parents in another country
A step child is either:
- your current partner’s child, or
- under 18 years of age and the legal responsibility of you or your partner and is:
- the child of your former partner, or
- the child of a former partner of your current partner
Step children born from polygamous or concurrent relationships are not counted in the balance-of-family test.
Live permanently in Australia
To be living permanently in Australia, your children must be:
- Australian citizens
- Australian permanent residents who usually live in Australia
- eligible New Zealand citizens who usually live in Australia
We don’t consider your children living in Australia on a temporary visa as living in Australia permanently.
If you do not know where your children are, we consider they are in the country where they were last known to live.
Eligible New Zealand citizens
You are an eligible New Zealand citizen if you arrived in Australia on a New Zealand passport and were:
- in Australia on 26 February 2001
- in Australia for 12 months in the 2 years immediately before 26 February 2001
- assessed as protected Special Category Visa (SCV) holders before 26 February 2004
Which children are not counted in the BoF test
Child deceased or claimed to be deceased
Deceased children are not counted in the balance of family test. For the purpose of the test, officers must be satisfied on the evidence before them that the child is deceased.
In normal circumstances, the child’s death is evidence by the child’s death certificate or a court order declaring that the child is presumed dead. However, in countries where official documentation is unavailable or unreliable, officers are encouraged to seek evidence from a wide range of credible sources in order to determine whether the child is deceased.
Presumption of death
The applicant may, to support their claim that a child is deceased, include evidence that a court has applied the common law presumption of death.
In certain circumstances, a court may apply a legal presumption that a person is deceased although the death of the person cannot be proven as a matter of fact. Officers may use such evidence (a court declaration or other evidence that a court has applied the ‘presumption of death’) in coming to the conclusion that a child is deceased.
The court’s presumption will be only one piece of evidence before the decision maker. However, in the absence of any other evidence that the child is alive, it should generally be given significant weight.
Children born to a partner’s polygamous or concurrent relationship
Australia’s migration legislation does not recognise polygamous or concurrent relationships as ‘partner’ relationships. Under s5F (Spouse) and s5CB (De facto partner) of the Act, for two persons to be considered each other’s partner, they must ‘have a mutual commitment to a shared life to the exclusion of all others‘. If a polygamous or other concurrent relationship exists, none of the relationships can be considered to be ‘to the exclusion of all others’ and none of the parties can meet s5F of the Act to be a spouse or s5CB of the Act to be a de facto partner – see:
- PAM3: Act – Act defined terms – s5F – Spouse and
- PAM3: Act – Act defined terms – s5CB – De facto partner.
Therefore, in cases of polygamous or concurrent relationships, the ‘partners’ cannot be recognised as a spouse or de facto partner under s5F or s5CB for the reasons outlined above. This means none of the partners’ children can be counted in the balance of family test under regulation 1.05(1)(a)(ii) as the applicant is not in a partner relationship with that child’s parent.
Generally, this would also result in the claimed partner being refused a visa on the basis of inability to satisfy parent visa secondary criteria because they could not be assessed as the partner of the primary applicant.
Talk to us as your trusted registered Migration Agents in Melbourne and be prepared to maximise your chances of Australian permanent residency.
