I’m a visa holder, can I access the Australian family court system?
03 Dec 2020
- Family Law
Divorce and relationship breakdown can be very trying and stressful events. But did you know that in certain circumstances, the Family Court can have jurisdiction to settle disputes relating to a relationship breakdown where neither of the parties is an Australian Citizen, or even a permanent resident?
Australia has an established Family Court to resolve issues relating to child custody and support, property and asset division (amongst other things). This is supplemented by various pathways which facilitate and encourage mediation and out of court settlement.
However, if you are able to establish that the Family Court of Australia is not a “clearly inappropriate forum” for resolving the family law issues dispute, then as a visa holder, you may be able to access this system.
For example, a couple and their children may migrate to Australia on an employer sponsored Temporary Skills Shortage (subclass 482) visa, with the intention of working towards permanent residency. Although one spouse would be the “primary applicant” for the visa sponsored through their employment, all members of the “family unit” [as the Migration Act terms it, in typically clinical fashion], hold subclass 482 visas as “additional applicants”. The couple separates. Either one of the parties would be able to seek to have the dispute resolved according to Australian law by the Family Court (if that was their preference). In the event that its jurisdiction is challenged by the other party, the Court would assess whether it is a “clearly inappropriate forum” to hear the dispute. The considerations it might take into account might include:
- Factors of convenience and expense, such as location of witnesses;
- Location of any joint assets of the relationship;
- The parties’ respective plans to each apply for further a visa;
- The connection of the parties and their relationship with each of the potential jurisdictions and associated issues of relief;
- Whether either party has already commenced related proceedings (including criminal or family violence proceedings) in another jurisdiction; and
- In which jurisdiction any children of the relationship now reside.
Relationship breakdown in these circumstances give rise to a delicate interplay between the family law issues on the one hand, and the need to maintain compliance with visa conditions on the other hand.
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The author thanks Andrew Ekert for his contribution on this article.