The Cross Over Between Family Law and Migration Law

There is an interesting intersection where family law clients need assistance from migration lawyers or vice versa. Family law and migration law often overlap in Australia. Many families face both legal challenges at the same time. Our team at Terry Anderssen Lawyers, conveniently located in North Brisbane at Nundah can guide you with all your family law issues. Read on to learn about the cross over between migration law and family law.

In a country like Australia where there are many migrants, many issues can arise in relation to migration law matters as well as family law matters. When a separation, divorce, or parenting disputes arise, visa status and migration issues can quickly complicate the situation.

This is where expert advice is essential.

The Overlap Between Family Law and Migration Law- an example

Recently we assisted a client with his family law parenting matter. The client and his child had already arrived to Australia and was on a sponsored visa. There was also a Final Parenting Order from his home country. However, his come country was not on the list of countries that Australia has a registration arrangement with- in terms of the overseas court order. His Final Parenting Order provided that he had to have a mirror order made in Australia. The client was allowed to relocate to Australia however in his overseas final order. This matter proceeded to the Federal Circuit and Family Court of Australia for determination in relation to the parenting issue. The issue was that for his visa, it was important to show compliance with his parenting matters in Australia. This is a good example of the cross over between migration law in Australia and family law.

To learn more about the list of the countries in Schedule 1A of the Family Law Regulations 1984, you can click here. 

Other areas where there is an overlap with Family Law and Migration Law

Relationship breakdowns can affect visa eligibility, especially when visas are based on a partner relationship. For example, say an Australian citizen has separated and then re-partners. If they are to apply for a partner visa, they may need to prove they have separated from the first partner and provide evidence in order to prove the validity of the new relationship, it is important they can show they have finalised their first relationship (married or de-facto).

From an immigration lawyer’s perspective:

Recently, we spoke with Arnela Tolic from Tolic Lawyers about the cross over between migration law and family law. Arnela is a first-hand migrant herself and an experienced immigration lawyer.

From an immigration law perspective, Arnela stated:

“The cross over between immigration law and family law can be challenging because there are many indirect and direct ways that family law matters can affect immigration matters and vice versa.”

In an article written by Arnela Tolic from Tolic Lawyers for Lawyer’s Weekly Arnela spoke of immigration law and family law being the two areas of the law that overlap each other. She spoke of the issues for immigration matters that may arise and also have significant impacts in the context of divorce, child custody, and family violence matters. She stated:

“Family law and immigration are two areas of the law that often overlap with one another. Immigration issues may arise and have significant impacts in the context of divorce, child custody, and family violence matters. It can often complicate a divorce in instances where one spouse’s immigration status is dependent on the other spouse, with potential to lose their visa status when the divorce is finalised. They would need to apply for another type of visa or leave Australia to avoid becoming unlawful and triggering negative immigration consequences. Another area of concern within family/immigration law is child custody, where parents often worry about their rights and protections when it comes to a custody dispute over their child because of one parent’s legal status in Australia.”

Ways there is an overlap between family law matters and migration law

These are other ways in which there is an overlap between family law matters and migration law. These issues show why family law and migration law must often be considered together.

• Parenting orders may impact relocation decisions, particularly when one parent wishes to move overseas with a child.
• Property settlements can also affect financial requirements for certain visas or sponsorship applications.
• Domestic violence can influence migration outcomes, with specific visa protections available to affected individuals.
• The Hague Convention’s crossover with migration law. This cross over is in relation to international child abduction and the involvement of the child’s habitual residence. 

The Hague Convention is a treaty for family law that enables a child’s prompt return to their home country, but the removal to a different country for the purpose of circumventing family law proceedings means the migration law context becomes relevant, as it determines whether the child has a right to remain. 

Other areas that can be affected by your immigration status:

Estate law is another area where there is a cross over with immigration law and issues related to this.

Another area that often people are not aware of is even if they are an Australian citizen, if they are not a resident and inherit property in Queensland, the FIRB regime can apply.

The Foreign Investment Review regime has important implications for testamentary gifts to foreign persons and the administration of deceased estates.

Also, for your immigration matter, you may receive advice to provide your Will made in Australia or overseas too. For an estate matter, it is also usually advisable that if you have property in another jurisdiction, you have a Will in that jurisdiction also.

To discuss more about your wills or estate matter, contact us here. 

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If you need advice on family law issues, we are here to help, contact us here.