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The intersection between family law and immigration law
There are many ways in which immigration and family law intersect, writes Arnela Tolic.
Arnela Tolic
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Family law and immigration are two areas of the law that often overlap with one another. Immigration issues may arise and have significant impacts in the context of divorce, child custody, and family violence matters.
It can often complicate a divorce in instances where one spouse’s immigration status is dependent on the other spouse, with potential to lose their visa status when the divorce is finalised.
They would need to apply for another type of visa or leave Australia to avoid becoming unlawful and triggering negative immigration consequences.
Another area of concern within family/immigration law is child custody, where parents often worry about their rights and protections when it comes to a custody dispute over their child because of one parent’s legal status in Australia.
The Federal Circuit and Family Court of Australia determines the “best interest” of the child, which involves making the determination such as each parent’s ability to provide a stable home environment, their mental and physical health, and the wishes of the child once they are old enough to make a reasonable decision. The context of a parent’s legal status in Australia is also taken into consideration!
As such, initiating a proceeding for divorce and child custody with the court without obtaining legal advice from an immigration/family lawyer can result in the visa holder suffering a disadvantage without a strategic plan.
A further area of concern is family violence within the family law and migration law framework.
Family, domestic and sexual violence is a major health, welfare and social issue in Australia.
It affects people of all ages and from all backgrounds but mainly women and children.
The meaning of family violence in the context of family law is broader than physical violence.
The definition of FDV provided by s 4AB of the Family Law Act 1975 (Cth) (“FLA”) defines “family violence” expansively to incorporate coercive and controlling behaviour, which may or may not include physical violence or threats.
The FLA definition includes examples of economic abuse, such as situations where the perpetrator denies a family member the financial autonomy that he or she would otherwise have had or where a person has unreasonably withheld the financial support needed by a family member.
The family violence provisions, as outlined within migration law, refer to stringent requirements where family violence, or part of family violence, must have occurred while the visa holder’s relationship existed with their sponsor (alleged perpetrator).
In addition, both under family law and immigration law, a victim of family violence must identify a perpetrator, which for reference of migration law, refers to the sponsor.
With recent expansion of evidentiary requirements for Family violence provisions under migration law, judicial evidence is outlined as key evidence when making an application for family violence provisions for partner visas, global talent visas and dependent child visas.
The following judicial evidence is acceptable in making a claim for family violence provision under immigration law:
- Court injunction under the Family Law Act 1975 against your partner;
- Court order against your partner made under a state or territory law;
- Record that the court has convicted your partner of a family violence offence against you or your dependant(s); and
- Record that the court has recorded a finding of guilt against your partner of family violence offences against you or your dependant(s).
Finally, there is hope!
The key is navigating the legal system to understand family law and the intersection of it with immigration to seek the best outcomes for clients.
Arnela Tolic is an immigration lawyer at Tolic Lawyers.
