15 Comments Family & de facto law, financial agreements, consent orders
If you are using a family law solicitor for those matters he should refer you to a solicitor versed in immigration law.
Are you separated from your husband?
Be aware that some people make claims of domestic violence when no such event has happened, they lose credibility by doing this and can end up losing their visa, don't go down this track if you do not have proof.
Do you have proof of domestic violence, did you advise the police at the time? Was any sort of order applied for on your behalf by the police?
Yes Martin ... I am separated from my husband since 28 sept 2012 . I hv been married for past fourteen years and it's been an emotionally and verbally abusive and financially abusive relationship from my husbnd. I went to counselling and that opened my eyes to what I was going through since so many years. Police had granted a VRO on 28tg sept night. I was happy to give sole custody of eight year old son to husband but son is afraid of his father indoors as indoors husband behaves very much opposite of what he is outdoors. He is a charming and down to earth doctor outdoors but inside the house he is very threatening n controlling n weekend regular alcohol and kid gets frightened of his weird behavior. I hv been suggested just a while ago of what you suggested a immigration lawyer in regards to my case. Is there any possibility that kids and me can leave Australia to our home country with the help of immigration lawyer? I donot wish to even attend mediation with my husband. It's like my soul has broken into pieces on coming to know the reality of my marriage and reading his affidavit of all lies and portraying me as a violent and aggressive lady and he admitting his extramarital affairs in such a way that all is justified and he is a perfect god like person. I have always been silent n tolerant to his extreme abusive behaviors and past six months have been hell of my entire life time till now. Totally devastated. I have two police incident reports. I wouldn't like to break a marriage. Husband is a rich doctor over here but money can't buy a person happiness and even kid isn't ready to stay with his dad even though I keep telling him that he can enjoy all luxuries with his dad. I always told my husband that he shouldn't abuse me and it's okay if we part as friends. But he kept his abusive behavior going on and rather escalating. Somehow it's not the man I married ever feels like. Past two extramarital affairs I tolerated and now he was threatening with third extramarital affair. That's the situation. I wish to go back to my own country and kid wants to be with me.
I am not making false claim of domestic violence. Husband has suggested in his affidavit that I should get residency based on domestic violence and take advice from immigration lawyer. But then it means that husband plans to withdraw his support from 457 visa and another threatening situation to me. He has put our names in airport watchlist and I do hope Australian legal system will give me justice and to my kids too. We all don't wish to stay in touch with husband and prefer going legally in India. Is tht possible ? Legal costs in India are cheaper. Having a feeling of being trapped still though free from abusive environment at home.
Since India isnt a Hague convention country I hope Australian family law courts won't let my husband have sole custody of kids just because he is primary applicant of 457 visa. He will withdraw support on my visa seems by the past threats of his and also the affidavit lines that I should see for residency on my own here through help of some immigration lawyer. It could mean he is planning to hv kids all by himself n deport me back to India. Kid hates his dad n baby is breast feeding and just ten months old. I hope this injustice doesn't happen with kids and me. I wish and hope kids and me can go back to own country. Divorce can happen in India after a year of separation then. Thanks a lot for your advice on this complicated matter.
It seems to me that you have satisfied the initial requirements to remain in the country, you should advise immigration of the separation and that a VRO has been applied for by the police. Once Immigration have examined your case I expect you will be granted a visa in your own right.
Your other questions seem to be relate to family law matters, so I'll move this to the family law forum where perhaps you'll receive some assistance with gaining orders regarding the children and with whom they live, and visitation arrangements, child support etc.
It is unfortunate that you signed the children into his care, but in the circumstances I expect that this was an interim arrangement that can be sorted out.
What has your solicitor had to say about this?
Thanks a lot Martin to clear my confusion on visa in my own based on domestic violence. May I know what type of visa is it ? As a secondary applicant to 457 visa I have no Medicare and centre link benefits. So ll the same continue with new visa? And as far as kids custody is concerned they are right now living with me. I haven't signed any papers of parenting orders or custody. Also would kids and me be allowed to go back in case I don't apply for visa based on domestic violence?we are all Indian citizens including my husband. I have the support of my parents and relatives back in India and here I am alone. Also husband has high class attitude of earning 7000$ a week or more. He used to bribe the eight year old for a toy and make the child scratch his itchy rash on leg or make the child massage his head. Child would do this in order to get a toy worth 25$! He is Obsessed with kids custody n my kid wants to go back to India to grandparents. Is it possible for us to go back ? Right now husbnd has interim court orders to hv placed our names in watchlist at airport. I feel trapped to be not able to reach India to my parents.
My solicitor has suggested an immigration lawyer at Perth. He sent me an email n then he ll send it to that lawyer. My lawyer deals with family law and so has not much idea on immigration law. He says the opposition of VRO case goes for a year or more than that. The court hearing on 2nov ll be adjourned mostly because my lawyer didn't hv enough time to prepare papers as husband had sought urgent court hearing to put our names in federal police watch list at all airports. Well I wasn't planning to leave Australia then. But since he put names on watch list I know my husbands intentions are to continue abuse n control like this.Does the VRO on an immigrant doctor in Australia affect his credibility ? My husband is very clever and manipulative and that scares me on his suggestion to apply visa based on domestic violence. In his affidavit he mentions on this. Does my secondary applicant 457visa get canceled because of domestic violence by primary applicant?
Is it possible for kids and me go back to India. We are all Indian citizens. Husband is primary applicant on 457 visa and kids and me are depend ants on secondary visa 457. So even though my husband has started with initiating application on property matters and child custody here in family courts I would like to know if it's possible for Australian law courts for immigrants to leave Australia and go own country in event of separation due to domestic violence? My lawyer has no idea on immigration law. Will family courts let my husband have eight year old and baby who is breast feeding to have with him and ask the mother that is me to leave kids in hands of father n go back to own country if I donot apply for residency here. I donot intend to stay in Australia and wish to have divorce in own country. Can anyone please suggest what my options would be? I have no spouse maintenance right n
Sorry can't be of much help with the visa's.
Your husband has applied to the court for an order to have the AFP place your childrens names on the air port watch list. You should have had an opportunity to put your case at the time. Obviously the magistrate thought there was enough of a risk of the children being removed to grant the order. The names can now only be removed from the watch list be another court order.
How long were the children living in India & how long in Australia?
Whose care are the children in & how often & of what duration is contact provided for the other parent?
Thanks for your quick response Jazzzzz ...court orders r interim ... Elder kid is 8 yrs old and baby is ten months old. Both r in my custody and I am primary carer right now as per interim orders. I had asked my family lawyer to appeal before my husband had applied regarding allowing me to leave India with kids as on grounds of domestic violence husband and me were already separated and husband had stopped paying for kids. Now I have aPlied for child support agency and was suggested to ask my lawyer to clAim spouse maintenance for me. Husbnd makes 7000$ per week or more ! And he is enjoying living in luxury apprtments here at 1100$ per week. I hope my lawyer can get my husband pay for my maintenance here as I am stuck and can't leave country and being on this visa can't get centre link benefit. Also no Medicare and poverty and illness r two major concerns in a foreign land. Elder kid has been in Australia only since two years and three months just like me. Baby was born last December in Australia but has Indian passport and hence Indian citizen.
Husband has applied for initiating application and trying to start with custody of kids matters. Yet kids r with me and I am the primary carer. My query is that does a mother have no right on kids ? Is fathers job and work more important than a mothers duties of taking care of kids and home stuff? Just because he is working here and even though being abusive indoors for us .. Do we have to be forced to stay here and like he suggested in his affidavit that I change my visa to residency. I donot want to live here and wish to return to my own country. As a human how can I be forced to live at a place where I don't wish to settle down and as marriage is over now there's no point in staying here for me. I just want to know does an immigrant mother who is house wife have any rights to return to her country in case of domestic violence. My husband always threatened me that if I left him then he would make life hell for me and he doesn't care for kids as well. I don't know how to go about it and quickly. My lawyer isn't migration lawyer and so it's getting difficult to know on rights and boundations stuff. I hope kids and me get justice. Husband has done all abusive behavior except for physical violence because he is a doctor and so very clever to hide it. In India things were easy because during his abusive episodic out Bursts I would leave the home with kid and reach parents place. This time I am stuck! I hope I can go back to India. He won't pay spousal maintenance to me and it's difficult leading a life here in loneliness and depression. I hope the court doesn't order husband to have a servant for kids and sends me back. Husband would threaten me that he ll get servant for kids and withdraw support from my visa and I would have to leave country. Its difficult for kids and kids can't live without me. Husband never was good with eight year old kid as well. Always bullied him and kid isn't emotionally attached to his father. Kid everyday requests me to get him a child lawyer so that he can have a say in court that he wishes to go back India with mother. It's complicated situation with kids being in picture.
From what you have said, you currently have primary care of both kids under an interim order. That would suggest that the magistrate believes that it's in their best interests that should be so. Unless you do something that could be considered as harmful to them (either physically or psychologically), or evidence is forthcoming that would alter the view that their best interests are being served with you as the primary carer, then it will probably remain that way. You certainly won't be replaced by a servant.
As for returning to India with the kids to live, that will have to be determined by the court if you can't come to an agreement. The view in relocation applications is that once a person becomes a parent, obligations are imposed upon them. These obligations will restrict the personâ€™s freedom of movement.
Ultimately a decision will be made on what is in the best interests of the children, not either parents wishes, nor even your 8yo wishes. At 8yo a child is not normally considered to have a sufficient level of maturity & understanding of the issues & implications involved. For your part, you need to be very very careful about what you say to & within hearing of your son. If a family consultant appointed by the court to do a report is of the opinion that the child has had his views influenced by your attitudes towards his father or living in Australia, it will have a negative impact on your case.
As for spousal maintenance, from what you say there seems little doubt he has a capacity to pay it, & your situation seems like it should warrant you receiving something.
Thanks a lot Jaaazzz......me not being replaced by a servant is a big relief! My husband can work based in India n is intentionally staying in Australia. Does this not help me go back with my kids. I have no close relatives or parents here! Neither does the husband have ! Also as my son was brought up by his grandmother and grand father while in India he misses them lots. I had moved to Australia on temporary 457 visa with husband and initially it was just for a maximum year. There are many Indian people who long to come and settle and stay in Australia. But since marriage is over for me and it's depressing and I need to give better time to kids and move on I wish to go back India. Since India isn't a member of Hague convention I think going to india shouldn't be an issue. My eight year old son has witnessed alcohol abuse and verbal and emotional abuse lots and faced the same due to his father. I had been to waratah too for getting appointment for his counselling. I wish he could manage to stay with his father as suggested by his father few months but son isn't ready n gets anxious. He is dealing with stress n talks of running away to India to grandparents. One of my Aussie friend had requested DCP to help her regarding custody issues and suggested me too because child fears living indoors with his dad. Thx for your valuable inputs. Cheers!
All of these issues you raise will have to be presented to the court in an appropriate way. That is the job of your solicitor. If the court orders a family report be carried out, your childs views MAY be expressed within that report. Alternatively or in addition, the court may appoint an ICL to represent the children independent of both parents.
In the interim you have primary care & have a very good case for spousal maintenance.
Thanks a lot Jaazzz ....one friend of mine suggested going to DCP...she said that is like a child having a lawyer and it had helped her son during custody issues. Should I go to DCP? I have told all my concerns to my family lawyer. He seems to interested in handing over case to immigration lawyer because he isn't immigration law expert. Hope I am able to go back India with kids as marriage has brOken down n family law stuff happens in Indian courts. My lawyer might talk today on my concerns on spouse maintenance as per mail I got from his secretary. The court ll be adjourned today as my husband had got interim orders ex parte last week fearing that I
Was leaving with kids to India. While as a matter of fact I was staying put for status conference on his opposition for VRO on 13 nov. I had talked to my lawyer that along with status conference I needed to apply to go back own country with kids. Husband in his affidavit on opposition of VRO has out up all lies and distorted truths. I am very much upset to hv been with such a person for so long in marriage and tolerated his constant mid life crisis situations! I like Australia and Australians have been so helpful to me that I can for sure say I wouldn't like to leave such a nice place but having no parents support and no close relatives here I feel lonely and depressed in this break down of marriage and feel cheated upon in life. Lawyer says the case takes upto a year or more than tht ! And I am thankful to you Jaazzz that you replied to my concerns. I ll sure look for ICL stuff and look for spouse maintenance in the mean time that I hv to stay here. Thanks once again.