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News & Knowledge

The intersection between cross border employment and family law

13th July 2016

Sharmini Subramaniam, Aitken Partners

The 457 visa is the most commonly used program for employers in Australia to sponsor skilled workers from overseas. The duration is up to 4 years and the person can bring their family with them. So what happens in the event of the breakdown of a relationship? This case study provided by MSI's law member firm Aitken Partners (Melbourne) provides some insight into this matter.

Case Study:

The parties marry in China and the Husband comes to Australia on a 457 visa in 2013. A year later, the Wife and children follow. During an argument involving family violence, the Police intervene and obtain an Intervention Order against the Husband. The Wife and children leave the home and the Husband does not know their location and has no communication with them for over a year. The Husband’s project abruptly ends and he is required to leave Australia within weeks with the Wife and children’s visas being cancelled upon his return to China.

To prevent such a drastic situation, action should be taken by the parties immediately following separation. The dilemma for those on 457 visas and their spouses is that many do not know whom to turn to for assistance, due to social and cultural isolation. However, if legal assistance is available what can be done?

For the Wife:

  1. Advice should be sought as to whether she and the children are able to remain in Australia by securing another visa
  2. Arrangements should be made for the Husband to pay child support and spousal maintenance (if required)
  3. Advice should be sought from the country of origin as to the most appropriate forum to issue proceedings for a final property settlement

For the Husband:

  1. The location of the Wife and children should be identified
  2. Arrangements should be made for the children to spend time with him (supervised or unsupervised) and for the payment of child support
  3. Advice should be sought as to whether there is any possibility of him continuing to remain in Australia; the impact of the Intervention Order on obtaining future visas; and the prospects of the Wife and children being able to continue living in Australia

As at 31 March 2016, there were 97,770 people in Australia on 457 visas, meaning there is the potential for this kind of situation to become a real problem. Therefore, it is imperative for those on 457 visas to have access to  legal advice and support should or when the need arises.