Judicially-determined claims of family violence

Forms of evidence

21.12 Evidence in support of a judicially-determined claim of family violence may take the form of:

• an injunction under s 114(1)(a), (b) or (c) of the Family Law Act 1975 (Cth), granted on the application of the alleged victim against the alleged perpetrator;^[14] or
• a conviction, or finding of guilt against the alleged perpetrator, in respect of an offence against the victim;^[15] or
• an order under state or territory law against the alleged perpetrator for the protection of the alleged victim from violence, made after the court has given the alleged perpetrator an opportunity to be heard, or otherwise make submissions.^[16]

21.13 Stakeholders indicated that applicants encountered few problems once a valid judicially-determined claim of family violence had been made. However, stakeholders highlighted numerous challenges faced by victims of family violence from migrant communities and culturally and linguistically diverse (CALD) backgrounds in accessing the legal system, including: language barriers; isolation; precarious economic and employment situations.^[17] While these are systemic issues wider than those addressed in this Inquiry, the ALRC notes the ongoing efforts of the Family Law Council’s inquiry into Indigenous and Culturally and Linguistically Diverse clients in the family law system.^[18] The ALRC suggests that the recommendations of that Inquiry will have implications for victims of family violence from CALD communities.

Post-separation violence

21.14 In November 2009, the Migration Regulations were amended to require—for judicially-determined claims—that ‘the violence, or part of the violence, that led to the granting of the order, must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator’.^[19]

21.15 The ALRC recommends that this requirement be repealed. In the ALRC’s view, the safety of victims of family violence is best protected by a policy that recognises that relationship breakdown may occur over a period of time, and that the family violence exception should work to prevent a person from remaining in, or returning to, a violent relationship.

Recognising the link between violence and separation

21.16 A number of stakeholders supported the proposal to repeal the requirement that the violence must have occurred while the relationship was still in existence.^[20] There was general consensus that the requirement does not reflect the reality of relationships, where violence may escalate or begin at the point of separation. DIAC acknowledged that ‘the point at which a relationship ceases can be difficult to determine’ and that ‘persons can be particularly vulnerable to family violence at this time’.^[21]

21.17 The Immigration Advice and Rights Centre (IARC) argued that ‘some couples separate from one another one in hope that a period of separation may result in reconciliation’ and that, ‘it is during this period of “separation” that family violence can occur’.^[22] The Law Institute of Victoria (LIV) submitted that amendment was required to acknowledge ‘victims of family violence leaving and returning multiple times and that family violence may take many different forms’.^[23]

21.18 Nigel Dobbie, a specialist migration agent, went further, and argued that the requirement ‘empowers the perpetrator’ because the perpetrator:

can simply end the relationship and immediately thereafter inflict violence on the victim, for example, by bashing her. As the relationship was over when the bashing occurred, the victim does not get the benefit of the family violence provision, despite a conviction of assault against the perpetrator.^[24]

21.19 It was further submitted that the perpetrator is encouraged to ‘dump and then bash’, because a sponsor who commits violence after ending the relationship does not ‘lose one of his two permitted sponsorships’,^[25] as no visa was granted on the basis of the family violence exception.

What is the legitimate role of the family violence exception?

21.20 If the relationship has ended and family violence occurs afterwards, a question arises as to whether the migration system—via the family violence exception—should be responsible for ensuring the safety of the person, or whether that responsibility is better addressed in other contexts.

21.21 DIAC noted that, if family violence occurs after the relationship has already ceased, the visa applicant’s position in the context of the Migration Regulations has already changed and the family violence exception can no longer perform its intended function^[26]—that is, to allow persons to leave the relationship without prejudicing their migration status.

21.22 DIAC suggested that policy guidelines on this issue can provide greater flexibility for cases where family violence occurs during the course of a relationship breakdown. For example, the Procedures Advice Manual 3 Guidelines (PAM) could

indicate that decision makers, in contemplating if the family violence took place before the relationship ended, should have regard to claims that the applicant left the relationship because the behaviour of the sponsor made them feel fearful. The fact that the violent behaviour occurred after the applicant left could then justify that the applicant’s feelings of fear were ‘reasonable’.^[27]

21.23 DIAC further indicated that PAM could also be amended ‘to clarify that Regulation 1.23 should only be invoked to refuse an application where a clear break in the relationship has occurred and the alleged family violence occurs well after that event’.^[28]

21.24 The ALRC considers that, while amendments to PAM would be useful, requirement in reg 1.23 should be repealed. The Migration Regulations do not require a causal nexus between the breakdown of the relationship and the fact that the alleged victim has suffered ‘relevant family violence’. This point was emphasised by DIAC in its submission; all that is required is that the relationship has ceased, and the victim has suffered family violence committed by the sponsor.

21.25 The ALRC considers that—given that there is no requirement that the violence must have caused the breakdown of the relationship—the difficulty in determining when a relationship has broken down and the propensity for violence to occur around the time of separation, the policy approach expressed by the Full Federal Court in Muliyana v Minister for Immigration and Citizenship is preferred. That is, the family violence exception

is intended to cover both situations: not to force a person to stay in an abusive relationship; and not to force a person to go back into an abusive relationship, in either case without compromising his or her immigration status.^[29]

21.26 The Court also suggested that there ‘will be cases where the violence occurs between former partners in circumstances, for example, many years after the relationship has ended, such that it would not qualify as ‘domestic violence’ within a concept of a “non-judicially determined claim for domestic violence”’.^[30] The ALRC considers that, a common sense reading of the provision would probably rule out instances where the violence occurred a substantial time after the relationship had ceased as being ‘family violence’.

21.27 In the ALRC’s view, such a policy position better reflects the nature, features and dynamics of family violence.^[31] There is substantial evidence to suggest that the separation of intimate couples is often a trigger for violence, where there is no prior history of violence in the relationship, or in any other setting.^[32]

21.28 The ALRC considers that the safety of victims of family violence would be best protected by repealing the requirement that the violence, or part of the violence, must have occurred while the relationship was still in existence. However, in the event that the provision is not repealed, or until it is, the ALRC recommends that amendments to PAM be made, along the lines suggested by DIAC.

Family violence protection orders

21.29 Until the requirement in reg 1.23 is repealed the ALRC recommends that PAM should be amended to clarify, or provide additional clarification, that a family violence protection order granted after separation should be regarded as sufficient evidence that family violence has occurred.

21.30 Since the introduction of the requirement in reg 1.23 that the violence must have occurred while the relationship was in existence, DIAC officers are less readily accepting a final family violence protection order obtained after separation.^[33]

21.31 Stakeholders argued that the Migration Regulations do not make reference to the timing of the grant of a protection order and, therefore, the problems ‘do not stem from the regulations but rather from the way in which a decision maker misapplies the law’.^[34]

21.32 There was strong support for the proposal that PAM be updated to reflect that family violence orders obtained post-separation could be used to prove the existence of family violence.^[35] DIAC submitted that ‘this approach is already consistent with current policy and [we would be] happy to provide additional clarification in PAM’.^[36]