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. |
Relationship assessment |
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:
A statutory declaration
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.
Two pieces of relevant evidence
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;
- psychologists;
- 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.
Any questions?
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.
My I am Mirna Dugan married to Australian man and legally married last March 31, 2023.. This happened when my husband John Dugan bought me a ticket to visit him in Brisbane, because he’s old enough and need to take care of him properly.. He’s on the stages of Alzheimers and Dementia problems but still in good fit man.. I arrived in Brisbane last March 13, and the two sons forced me to go back home last March 19,2024.. On the next day Thursday, I have no idea that my husband had an Appointment w/his own Lawyer Atty Warren Denny because of his properties will be paid on March 22,2024 for a million of AUD.and he wants that the money will be put in his bank account in ANZ.. My husband took that day March 14, for his appointment to his lawyer so that he can explain well through my interpreter because he can’t explain very well because of his an ability that can’t speak very well. We went there w/ my husband in the office of Atty Warren Denny to explain everything about the property why it is sold already. So the lawyer asked what’s the name of the Agency who is holding the contract of the house and told him FRANZWA the Realtor:: So that happened the lawyer called FRANZWA to ask some details of the property. After talking to the Agency the lawyer asked my husband if he gave a POWER of Attorney to his son and he said A BIG No.. So asked also if we are married and asked our Marriage Certificate . . After the appointment from the lawyer we went home to 607 Upper Brookfield Rd, QLD to get my Marriage Certificate and at the same time we drop to the office of the agency FRARZWA to talked about the contract of his property and the Sec, gave it to my husband and suddenly he cross out the name of the lawyer of his son David Dugan and put it into his lawyers name Atty Warren Denny., The Sec of the Agency called right away the son David Dugan that they told him that my husband went to their office to get the contract and change the name of the lawyer.. So my husband submitted the contract and our marriage certificate to his lawyer already.. Then at 2:00 pm that day March 14, 2024 my husband had an appointment w/ his doctor in Mater hospital of his neurologist doctor.. While waiting for the appointment time in front of the clinic of the doctor his son David Dugan called his father and he will come to talked to him about the contract that he get from the Agency and followed us in the hospital.. So because my husband Upset because of the behaviour of his sons he took my hands and to me said we will leaved the hospital because my son will come here.. So we went home rushing and he didn’t meet his son., So the same day it’s almost late in afternoon my husband decided not to go home anymore in their house because his sons are following us. We rent an Hotel for us to stay for a few days so that he can’t see his sons.. But unfortunately I said to my husband what is that we have no anything w/ us and stayed in the hotel w/ any things for us to used.. He called one friend of him to come in the hotel to pick us and took some of his belongings to sold whatever he wants so went together to Brookfield while he is taking things that he wants to buy and I am so busy also w/ my husband taking our things to used in the hotel After all the sons are following because my husband took his car in their to put our things.. So they followed us monitoring the car.. They had trace us that night and forced their father to leave me alone in the hotel.. Because I am so busy that time taking our things inside the car my husband and his so Paul Dugan are already hitting each other inside the information of the hotel. My husband was hit by his son in his Arms bleeding and forcing to come out..I saw him bleeding and I shout; Paul why are you doing this to your father, and we are Legally married I said.. And then left away from the in information of the hotel and we went inside the room Crying together w/ my husband..After a few minutes maybe 30 minutes suddenly somebody is knocking so load and my husband said don’t Open and because he’s always knowing so load so force to Open the door slowly and his push the door and husband also pushing inside the room but because my husband is very weak so the son entered our room.. After that it’s late we can’t sleep properly because of too much TRAUMA, mentally, physically, emotionally, stressed, spiritually and Psychologically.. We are Crying together inside the room why they are doing this because maybe the son don’t want Me to have my rights being legally married.. So early morning of March 15, my husband is not feeling well due to too much Trauma, domestic violence.. He vomitts a lot inside the hotel and I need him to go to the hospital so I called a taxi for us to go.. We went to Marshall Lane Kenmore for check up.. But the 1st thing the doctor asked is what happened to his Arms two wounds and my husband my son Paul Dugan hits Me.. So all the incharge in the Clinic are really concerned and asked me why not called a Police report and I said no because it is his son, so they are worried about the condition of my husband.. After that upon checking up, we went to the nearest restaurant near the clinic in Kenmore to eat something because my husband had no appetite to eat for two days because of the Tragedy.. So while waiting for the food to be served my husband vomitts again so many inside the restaurant up to the CR.. so I accompanied again to go back to the clinic so they gave him already a medication for the vomitt.. So didn’t eat the foods we ordered and take home for my husband.. When we are there in the hotel the son come to see Us and force my husband to go to the hospital and I taught that I can See my husband in the hospital.. That’s the tactics they do to me to Separate my husband to me and can’t visit him in the hospital anymore until they fix my ticket to come home here in my country.. Can you help Me Maam to protect my Rights, freedom and security because we are also legally married.. They sons harassed Us together w/ his father and Abuse me my Right and everything.. I need to take care of my husband because he’s already old and he needs me Maam.. Right now I am having a Traumatic Situation s, mentally, physically, emotionally, spiritually and psychological effects of myself.. Crying everyday every night.. So kindly please Maam , help me to secure my Right and freedom security being legally married to my husband.. I still have my visa up to May 31st but they forced me to leave.. Thank you and hoping to help me please Maam, to see my husband’s husband and my rights to the family..
Kind Regards,
Mrs Mirna Dugan
Hi Mirna,
As your matter is quite complex, please email us at [email protected] to discuss further.
Kind regards,
Hannan Tew