This article is for everyone living in Australia whose partner is an Australian or New Zealand citizen or permanent resident. It is also a careful read for anyone who has experienced, is currently experiencing, or may one day experience family violence from a partner, and it is especially worth knowing for partner-visa holders who already have children. Whether you are currently enjoying a happy relationship or quietly grieving one that is changing, there are legal avenues you can use to maximise the protection of your rights.
We all know that the breakdown of a relationship is a very painful thing — all the more so when you are far from home in Australia. If your Australian status has not yet been granted and your partner then leaves, it can feel like salt in the wound.
During an Australian partner-visa application, if the partner-visa applicant (i.e. the sponsored person on the partner visa) is subjected to family violence by their partner (i.e. the sponsor on the partner visa) — physically controlled, threatened, or financially manipulated — what should they do? And while holding an Australian partner visa, if the relationship breaks down and the couple wants to end it, should the sponsored person worry that the end of the relationship will stop them from obtaining permanent residency?
In fact, breakups during a partner-visa application or while holding a partner visa happen for all sorts of reasons and are not uncommon — they are among the questions we are asked most often.
If you are in a partner relationship (including marriage or a de facto relationship) with an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, a partner visa allows you to remain in Australia. However, partner relationships sometimes break down, which can cause a great deal of anxiety for partner-visa holders. In this article we discuss the options available to you if you hold a partner visa but your marriage or de facto relationship with your Australian partner has ended, and how you may still be able to secure your Australian permanent residency.
Notifying the Department of Home Affairs
If your relationship with your partner has broken down, the first thing you must do is notify the Department of Home Affairs. You will need to complete Form 1022, the “Notification of Changes in Circumstances”, and return it in one of the following ways:
- by email;
- through the online contact form;
- through your online ImmiAccount.
In certain circumstances you may still be eligible to remain in Australia, in which case you will need to make an application to the Department of Home Affairs.
Remaining in Australia
Even if your partner relationship has broken down, you may still be eligible for a permanent visa if any of the following apply:
- during the relationship you experienced family violence from your sponsor;
- you have a child of the relationship;
- your sponsor has passed away.
Even if none of the above applies, you may still be able to remain in Australia by applying for a different, alternative visa.
Relationship breakdown due to family violence
Family violence is any conduct — actual or threatened — that causes you to fear for, or feel concern about, your own health or safety.
Family violence is not limited to physical violence; it can also include:
- psychological and emotional abuse;
- financial manipulation;
- controlling and manipulative behaviour;
- threatening behaviour;
- damage to property.
This provision also applies to violence directed at you or at a child in the care of you or your partner.
To rely on this provision you must prove that the partner relationship between you and your sponsor has broken down. If you continue to live together, you must also be able to show that, even under the same roof, the marriage or de facto relationship has irretrievably ended. If the Department of Home Affairs is satisfied that your relationship with your partner before the separation was genuine and that you suffered family violence, you will be granted a permanent visa, provided you meet the other health and character requirements.
Proving family violence
While you do not need to prove that the relationship ended because of family violence, the family violence must have occurred before the relationship ended. For holders of the Subclass 309 temporary partner visa, the family violence must have occurred after your arrival in Australia.
The Department of Home Affairs may ask you to prove that your relationship was genuine and ongoing prior to the breakdown. Once that has been assessed, they will then consider your family-violence claims.
A number of documents can be used to prove family violence, and they fall into two categories: judicial evidence and non-judicial evidence.
1) Judicial evidence
Judicial evidence is any evidence that has previously been considered by a court and has resulted in a court order or judgment.
For example, judicial evidence may include, but is not limited to:
- evidence that the perpetrator has been found guilty of an offence committed against you;
- an injunction issued by a court against your former partner;
- an arrest warrant;
- a protection order.
2) Non-Judicial evidence
Non-judicial evidence is evidence from other sources that has not previously been submitted to, or considered by, a court.
For example, non-judicial evidence may include, but is not limited to:
- medical or hospital reports;
- reports from social workers or psychologists;
- police reports or statements;
- letters from women’s shelters, family or family-violence crisis centres;
- letters from school counsellors or principals.
If you are relying on non-judicial evidence to prove that you experienced family violence, you must provide at least two pieces of evidence from two different professionals or agencies from the categories above. You must also include a statutory declaration.
When you produce judicial evidence, the Department of Home Affairs must accept that family violence occurred. If you provide non-judicial evidence, it is for the Department to decide whether family violence occurred. In that respect, judicial evidence carries greater weight.
If the Department is satisfied that family violence occurred, you will be granted a permanent visa. In some cases, based on your non-judicial evidence, the Department may not be satisfied that family violence occurred. In that situation, they may refer your matter to an independent expert. The independent expert will make their decision after inviting you to an interview. The Department will accept the independent expert’s decision. Accordingly, if the expert finds that family violence did not occur, the Department is likely to refuse your permanent visa application.
Children of the relationship
If you and your former partner share joint custody, or your former partner has a financial responsibility to maintain the child, you may still be eligible for a permanent visa after the relationship has broken down. However, you will need to prove your parental relationship to the child. Evidence you can provide in this situation includes:
your child’s birth certificate, naming both of you as the child’s parents;
or a court order in relation to parental rights or custody arrangements.
Death of the sponsor
If your partner has passed away and you can demonstrate that the relationship would have continued had your sponsor not died, you may still be eligible for a permanent visa. For Subclass 820/801 or Subclass 300 visas, you may also need to prove that you have close business, cultural or personal ties in Australia.
Applying for an alternative visa after a relationship breakdown
If none of the above circumstances apply to you and you wish to remain in Australia, you will need to apply for an alternative visa. However, it is important to note that not every visa will suit your situation — do not rush into an application, or you may end up in the awkward position of being unable to stay in Australia because the alternative visa you applied for is not granted. Our firm offers professional visa services and has extensive experience with Australian migration law, visa application procedures and the various issues that arise along the way. If your partner relationship in Australia has broken down and you are not sure what to do, we recommend that you contact us for legal advice so we can identify the best solution for your circumstances.
Key points
We have summarised the various relationship-breakdown scenarios discussed above: if you hold a temporary partner visa and your relationship with your partner breaks down, you need to contact the Department of Home Affairs. In certain circumstances you may still be eligible for a permanent visa. If you have experienced family violence, if you have a child with your partner, or if your partner has passed away, special concessions may be available, provided you can prove that those circumstances are genuine.
In summary
There are many reasons why a partner relationship can break down. If your situation fits one of the categories above, you can take the corresponding steps to protect your right to remain in Australia — and potentially secure Australian permanent residency. However, steps such as gathering effective evidence are often overlooked. We recommend familiarising yourself in advance with what may happen in future. None of us knows how a future partner relationship will turn out; being aware of the relevant law ahead of time means you can better protect your legal rights when the need arises. If unfortunately your relationship with your Australian partner has broken down and you wish to pursue permanent residency or apply for an alternative visa, please feel free to consult us.
