Fact Sheet 38 - Family Violence Provisions
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The Family Violence Provisions (FVP) of Australia's migration program allow certain people applying for permanent residence in Australia to continue with their application after the breakdown of their married or de facto relationship, if they or a member of their family unit have experienced family violence by their partner.
The FVP were introduced in response to community concerns that some partners might remain in an abusive relationship because they believe they may be forced to leave Australia if they end the relationship.
Definition of relevant family violence
Relevant family violence is defined as:
'a reference to conduct, whether actual or threatened, towards:
- the alleged victim, or
- a member of the family unit of the alleged victim, or
- a member of the family unit of the alleged perpetrator, or
- the property of the alleged victim, or
- the property of a member of the family unit of the alleged victim, or
- the property of a member of the family unit of the alleged perpetrator,
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety'.
Eligibility
Under the FVP, people who are in Australia and who are applicants for the following visa classes may be eligible to continue with their application for permanent residence:
Family stream visa classes
Primary applicants for:
- Partner (permanent) – offshore
- Spouse (permanent) – offshore*
- Interdependency (permanent) – offshore*
- Partner (temporary and permanent) – onshore
- Spouse (temporary and permanent) – onshore*
- Interdependency (temporary and permanent) – onshore*.
*Although these visas have been closed to new applicants from 1 July 2009, existing applicants are covered by family violence provisions.
Skilled stream (business) visa classes:
Partners of primary applicants for:
- Established Business in Australia
- State/Territory Sponsored Regional Established Business in Australia
- Labour Agreement
- Employer Nomination Scheme
- Regional Sponsored Migration Scheme
- Distinguished Talent
Other:
Partners of primary applicants for Resolution of Status (subclass 851 only).
All applicants must also satisfy all other relevant legal requirements, including health and character requirements.
How the family violence provision works
Family stream visa classes
Partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage visa application process.
See: Fact Sheet 30 - Family Stream Migration - Partners
Partner visa applicants
If the applicant’s relationship breaks down after they have applied for permanent residence, and they can provide acceptable evidence under the Migration Regulations that they or their dependants have been the victim of family violence committed by their Australian partner, the applicant can still be considered for permanent residence.
The applicant will also have to satisfy the delegate that their relationship was genuine and continuing until it ceased.
Note: There are some variations within the Partner category visas in the eligibility to access the FVP. More information can be obtained from each state and territory office of the department.
See: Contact Us
Prospective Marriage visa holders
Some Prospective Marriage visa holders may be eligible to apply for permanent residency under the FVP.
If the visa holder married their sponsor before their Prospective Marriage visa ceased and the marriage breaks down, they can still lodge a Partner visa application and seek access to the FVP if they or their dependants have been the victim of family violence committed by the sponsoring partner.
Skilled stream (business) visa classes
The partners of primary applicants for certain business visa classes may still be considered for permanent residence in the following circumstances:
- the married or de facto relationship broke down after the application for the business or skilled visa had been lodged
- they provide acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.
If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time.
The above condition also applies to applicants for a Resolution of Status visa (subclass 851 only).
Forms of acceptable evidence
For the purposes of the FVP, acceptable evidence may be judicially or non-judicially determined.
Acceptable judicially determined claims
Any one of the following:
- certain court injunctions under the Family Law Act 1975
- certain court orders against the partner made under an Australian state or territory law
- evidence that the partner has been convicted (or has recorded a finding of guilt) of an act of violence against the visa applicant or their dependants.
Acceptable non-judicially determined claims
Both of the following are needed:
- a statutory declaration completed by the alleged victim of the family violence which sets out the allegation of family violence and names the person alleged to have committed it
- two statutory declarations, completed by competent people in two different professions, that:
- set out the evidence on which they have based their opinion that family violence has occurred
- name the person alleged to have committed it.
A police record of assault, not including a witness statement made by the alleged victim, can be provided as an alternative to one of the statutory declarations from a competent person.
A joint undertaking to a court constitutes an acceptable non-judicially determined claim of family violence. Evidence of a joint undertaking to a court made by the visa applicant and the partner, related to an allegation that is before the court that the partner has committed an act of violence against the visa applicant or their dependants is an acceptable non-judicially determined claim of family violence.
Competent people
Competent people are certain professionals who are authorised to provide statutory declarations as forms of evidence of family violence. They include:
- doctors and psychologists who are registered in Australia
- nurses who are registered in Australia and currently working as registered nurses
- social workers who are members or are eligible for membership of the Australian Association of Social Workers and are currently working as social workers
- family consultants under the Family Law Act 1975
- managers or coordinators of women's refuge centres or specialist family violence crisis and counselling services; or people with decision–making responsibility for matters concerning family violence in a women's refuge centre or specialist family violence crisis and counselling services
- Australian state and territory government child welfare and protection authorities (if there is violence or abuse, including sexual abuse, of children).
Statutory declaration form
Department Form 1040, Statutory Declaration relating to family violence, should be used for the purpose of providing a statutory declaration under the FVP.
The form is available from the department's website or from departmental family violence contact officers.
See:
Form 1040 (07/07) Statutory declaration relating to domestic violence (for partner category visa applications lodged before 15 October 2007) (106KB PDF file)
Form 1040 Statutory declaration relating to family violence (for partner category visa applications lodged on or after 15 October 2007) (111KB PDF file)
Referral for independent assessment
Where there are reasonable doubts regarding the strength of a non-judicially determined claim of family violence, the department may refer the evidence supporting the claim to an independent expert for assessment. The independent expert will provide an opinion to the department either that family violence has or has not occurred. An independent expert's opinion must be accepted by the department.
The referral of evidence to an independent expert only applies to non–judicially determined claims of family violence. Acceptable judicially determined claims are not referred.
Information regarding a claim of family violence is provided to the independent expert on the understanding it will be treated in confidence.
Further information is available on the department's website.
See: www.immi.gov.au
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.
Fact Sheet 38. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last reviewed August 2011.
© Commonwealth of Australia 2010.