“What’s Love got to do with it?”
February 25, 2016
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By: Alex Paterson
Last week I participated in a Forum for Expatriate Management event in Perth, alongside Martin Kavanagh, Irish Honorary Consul and Principal of Kavanagh Family Lawyers, my colleague Kian Bone and two highly experienced HR professionals. The session covered aspects of immigration and family law, in the context of international assignments. As international assignment patterns and locations become ever more challenging, the chances of a family breakdown scenario unfortunately increase.
Start of Assignment
The issue can rear its head at the outset of an assignment, when an employee wants to bring a dependent child to Australia without the other parent. Public Interest Criteria must be considered where a child under 18 is included in a visa application, deriving from Australia’s obligations as signatory to international Conventions such as the Hague Convention and the Convention on the Rights of the Child. The criteria prevent grant of a visa if there are custody/residence disputes pending. For a child to be granted a visa with only one accompanying parent, DIBP must be satisfied:
- that the law of the person’s home country permits removal of the child;
- that each person who can lawfully decide where the child is to live consents to the visa being issued; or
- that the grant of a visa would be consistent with any Australian Child Order in force.
DIBP will usually require either written consent of the parent remaining overseas or a Court Order addressing residence and other related provisions in place for the child.
DIBP must also be satisfied that the visa grant is in the best interests of the child. Typically they would not seek further evidence if consent is given by the overseas parent or a Court Order is in place. It would only be if other concerns have come to light during the application process.
Family Issues Whilst on Assignment
Challenging scenarios can arise while employees are on assignment. Relationship breakdown when in a foreign country on a limited stay visa, adds another level of complexity. Possible new de facto relationships (which in the context of a Subclass 457 visa application could be substantiated after 6 months), visa cancellation provisions (which would affect dependent 457 visa holders in a relationship breakdown) and the fact that an adult dependant in a relationship breakdown scenario, might want to return overseas even if there are options for them to remain in Australia (quite possibly with any dependent children), mean these situations need careful handling.
Assignees may not understand when the Australian courts would have jurisdiction over divorce/relationship proceedings and that this may extend to making settlement orders for foreign owned assets and parenting orders in respect of children of the relationship.
Martin addressed the establishment of a de facto relationship in Australian family law terms and how this differs from the position in UK for instance, or in the USA. This in turn directly affects property settlement and child orders that may be made in respect of a relationship breakdown occurring whilst on assignment in Australia.
An interesting point made was that in any family law matter, evidence submitted to DIBP to substantiate a relationship or to demonstrate financial standing as part of a visa application would be compelling to the Family Courts.
Visa Cancellation
DIBP can cancel an Australian visa where a “circumstance upon which the visa was granted” no longer exists. Certain factors must be considered before this decision is made. Where family law matters are pending, DIBP would not typically proceed with cancellation until they have been concluded.
In family violence situations, special provision is made in limited circumstances. This allows some individuals who entered Australia holding a Prospective Marriage Visa to lodge a Partner Visa application and those with a provisional Partner Visa to apply for a permanent Partner Visa, where the marriage or relationship has broken down due to family violence committed by the sponsoring partner/spouse.
For dependent 457 visa holders however, the point will likely come where they will either have to qualify for a visa in their own right (as a primary applicant), or return overseas. Children’s visa status also needs assessment to see what options exist to live in Australia or visit to have access to the Australian-based parent.
Top Takeaways for Companies
Include family matters in your pre-assignment briefing checklist. Assignees can be advised to seek personal legal advice, as applicable. This includes counselling assignees to immediately seek family law advice where family issues arise.
Ensure international assignment policies address which accompanying and future dependants are included within its terms and the level of support offered. This is critical to avoid any misunderstandings, particularly in the case of short-term assignments or where new relationships are established while on assignment.
Where issues arise on assignment, be mindful of on-going immigration sponsorship obligations as well as any specific contractual commitments made to employees and family members and seek prompt advice where needed.
