If you hold certain Australian visas and have experienced family violence, you may still apply for permanent residency via the “family violence” provisions.
As of 31 March 2023, the Department of Home Affairs have introduced various changes to reduce the burden on victims when providing evidence in support of a family violence claim.
This article will take you through what the family violence provisions are, and what evidence you must provide to submit a valid claim.
Do I meet the requirements for the family violence provisions?
Each of the following must be satisfied to meet Australia’s family violence provisions:
- you must have experienced family violence perpetrated by your sponsor;
- you must be separated from your sponsor;
- the family violence must have occurred while you were in a relationship with your sponsor; and
- you must have applied for or hold a specified visa type.
You are eligible to be considered under the family violence provisions if you have applied for, or currently hold, one of the following visas:
- Temporary Partner (subclass 820) visa;
- Dependent Child (subclass 445) visa (as a dependent where a visa-holding parent has applied for the family violence provisions);
- Distinguished Talent (subclass 858) visa (as a secondary visa applicant where the primary visa holder has been granted a permanent visa);
- Provisional Partner (subclass 309) visa (and either entered Australia on this visa, or had the visa granted while you were in Australia under a COVID-19 concession); or
- Prospective Marriage visa (subclass 300) (and have entered Australia and married your sponsor).
Most commonly, this applies to people who are sponsored for one of the Partner visas.
What constitutes family violence?
Any conduct that makes you fear for your (or your family’s) safety and wellbeing is considered family violence. This extends to violence directed at your pets or property.
The Department of Home Affairs provides guidelines as to what may be considered family violence, which include:
- physical abuse;
- sexual abuse;
- verbal or emotional abuse;
- social abuse; or
- financial abuse.
How do I apply for the family violence provisions?
There are various steps that must be taken to request access to the family violence provisions, which are outlined in the table below.
Notify the Department of Home Affairs
You must notify the Department that your relationship has ceased, and that you intend to rely on the family violence provisions.
You can provide evidence in support of the relationship and family violence assessments (more on this below) at this stage, or otherwise notify the Department that you need time to prepare your supporting documents.
The Department must be satisfied that you were previously a genuine and ongoing relationship with your former sponsor. This may require you to provide evidence of:
Family violence assessment
If the Department are satisfied that your relationship was genuine and ongoing, they will then assess your family violence claims. This assessment is often made at the same time – so you can simply provide the relationship and family violence evidence together.
You may provide judicial or non-judicial evidence (please see below for further details).
Importantly, the evidence you provide must demonstrate that:
After submitting your evidence
If the Department accept that you have experienced family violence, they will commence processing the remainder of the requirements for the grant of a permanent visa. As part of this process, the Department may request:
Your case will be referred to an independent expert if the Department are not satisfied that you have experienced family violence. If this occurs, the independent expert may have an interview with you and provide an opinion on whether you have experienced family violence. The Department is bound by the independent expert’s opinion.
If the independent expert considered that you have not experienced family violence, you will be given the opportunity to respond.
What evidence do I have to provide?
As referred to above, you must provide either judicial or non-judicial evidence that you have experienced family violence.
Judicial evidence refers to a document from a court of law. Judicial evidence includes a:
- court injunction under the Family Law Act 1975 against your former partner;
- court order against your partner;
- record that the court has convicted your partner of a family violence offence against you or your children; or
- record that the court has recorded a finding of guilt against your partner of an offence of violence against you or your children.
It is important to note that an interim order is not considered judicial evidence.
Generally speaking, to satisfy the legislative requirements for non-judicially determined claims of family violence, the spouse/partner of the alleged perpetrator must provide:
The Statutory Declaration must contain:
- if they are the victim of relevant family violence – sets out the allegation, names the person alleged to have committed the relevant family violence (or if the conduct was not towards you as the alleged victim – name the person to whom the conduct was towards, and identify your relationship with that person);
- if another person is the victim of relevant family violence – the same details as the above, as well as the evidence on which the allegation is based.
You will need to provide at least two differing pieces of evidence that must be provided from certain professionals acting in their professional capacity, including from
- medical professionals (doctor, nurse/midwife);
- police officers;
- child welfare officers;
- social workers;
- family consultants/family relationship counsellors; or
- education professionals.
As there are very specific formats and levels of detail required when providing non-judicial evidence (see here), it is recommended that you seek legal advice to ensure you provide sufficient and appropriate documents.
What are the March 2023 changes to non-judicially determined claims of family violence?
In March 2023, the Department of Home Affairs announced various changes to the evidence requirements for victims of family violence. These changes are the result of discussions with legal specialists, who have highlighted the challenges faced by victims when providing such evidence.
The aim of these changes is to improve accessibility to the family violence provisions. It is anticipated that the evidence requirements will be further reviewed in the next 12 months to ensure community expectations are met.
Such changes include:
- adding midwives to the list of medical professions who can provide evidence;
- adding advocacy and crisis service providers who can provide evidence;
- adding risk assessments and reports as types of evidence; and
- removing the statutory declaration requirement for certain healthcare professionals.
The family violence provisions reflect Australia’s zero-tolerance policy for domestic abuse. If you have experienced domestic violence and are concerned about your visa status, it is important that you seek legal advice as soon as possible. For further information, get in touch with our experienced team by email at [email protected] or by phone at +61 3 9016 0484.