Partner Visa Child Custody and Consent

What does partner visa child custody mean in a partner visa application?

Partner visa child custody is the set of legal rules that decide whether a child from a previous relationship can be included in a partner visa application when the child's other parent is not migrating. In short, the Department must be satisfied about two separate things before it grants the visa to the child. The first is custody: the child's home country law permits the move, or every person with the legal right to decide where the child lives consents, or the grant is consistent with an Australian child order. The second is the child's best interests. These partner visa child custody rules sit in Schedule 4 of the Migration Regulations 1994 as public interest criteria 4015, 4016, 4017 and 4018.

Many families only discover partner visa child custody issues after they have started an application, sometimes after creating their ImmiAccount and filling in the family details. A parent may have raised a child alone for years and assume that is enough. A former partner may have agreed informally but never signed anything. A divorce judgment may give "custody" to one parent but say nothing about moving overseas. Each of these situations can stop the visa for the child and, in some cases, for the whole family. This guide explains the law, the documents, and the options when the other parent has died, cannot be found or refuses to consent.

This article focuses on the custody law side of including a child. For the wider process of adding a child to an application, start with the complete guide to partner visas in Australia and the partner visa document checklist. For questions about whether an older child still counts as a dependent child, other guides in this series deal with age and dependency. Here, the focus stays on partner visa child custody, consent and court orders.

Which partner visas do the partner visa child custody rules apply to?

The partner visa child custody rules apply to every partner visa subclass and to the Prospective Marriage visa. A child under 18 can be included in an onshore Subclass 820 partner visa application, which leads to the permanent Subclass 801 stage. A child can also be included in an offshore Subclass 309 partner visa application, which leads to the permanent Subclass 100 stage. The Subclass 300 Prospective Marriage visa contains the same type of custody criterion. The legal test is the same in each case, so partner visa child custody evidence is prepared in the same way whether the family applies in Australia or from overseas. The differences between the two stages are explained in the guide to Subclass 820 vs Subclass 801.

Which public interest criteria apply to a child in a partner visa?

Four public interest criteria apply to a child under 18 in a partner visa: PIC 4015 and PIC 4017 deal with custody, and PIC 4016 and PIC 4018 deal with the child's best interests. They come in pairs because the same rule is written twice. PIC 4015 and PIC 4016 refer to the "additional applicant" and are tested in the primary criteria, which the main applicant must meet. PIC 4017 and PIC 4018 refer to the "applicant" and are tested in the secondary criteria, which the child must meet.

The Schedule 2 clauses that pick up these criteria for partner visas are set out below. Each primary clause says the main applicant cannot be granted the visa unless each member of the family unit who is under 18 and made a combined application satisfies PIC 4015 and PIC 4016. Each secondary clause says that, if the child has not turned 18, PIC 4017 and PIC 4018 must be satisfied in relation to the child.

• Subclass 820: clause 820.225 (primary) and clause 820.324 (secondary).
• Subclass 801: clause 801.225 (primary) and clause 801.324 (secondary).
• Subclass 309: clause 309.229 (primary) and clause 309.326 (secondary).
• Subclass 100: clause 100.225 (primary) and clause 100.324 (secondary).
• Subclass 300: clause 300.227 (primary).

The Subclass 820 requirements and documents guide and the Subclass 820 partner visa guide set out the other criteria that sit beside these partner visa child custody provisions.

PIC 4015 and PIC 4017: the custody criteria

PIC 4015 and PIC 4017 are the custody criteria, and each one is met if the decision maker is satisfied of any one of three matters. The first is that the law of the child's home country permits the removal of the child. The second is that each person who can lawfully determine where the child is to live consents to the grant of the visa. The third is that the grant of the visa would be consistent with any Australian child order in force in relation to the child. Department policy describes these as the parental responsibility criteria. They protect the rights of a parent or guardian who is not part of the migration.

PIC 4016 and PIC 4018: the best interests criteria

PIC 4016 and PIC 4018 are the best interests criteria, and they require the decision maker to be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the child. The test is written in the negative. Department policy says officers should not go looking for best interests evidence. They assess it on the material already provided, unless there is clear evidence that raises a concern for the child's welfare. Policy also says that "compelling" means strong, obvious information that the grant would clearly not benefit the child.

Policy is firm that the two pairs are separate tests. An officer who is satisfied about custody under PIC 4015 must not assume that PIC 4016 is also met. A separate assessment of best interests is required. In practice, partner visa child custody documents often help with both. Policy notes that if a court has already applied the best interests principle when it gave one parent full parental responsibility, the officer may be able to rely on that order for the best interests test too.

Why partner visa child custody can stop the whole application

Partner visa child custody can stop the whole application because the primary criteria use what Department policy calls a "one fails, all fail" approach. PIC 4015 and PIC 4016 sit in the primary criteria. If the child does not satisfy them, the main applicant does not meet the primary criteria. Policy gives the example of a parent and child applying for a Subclass 820 visa. Under clause 820.225, the parent must meet PIC 4016, and that can only happen if the child satisfies PIC 4018 under clause 820.324. If the child fails, both the parent and the child must be refused.

This is the point many applicants miss. A missing consent is not a small paperwork problem that only affects the child. Unless the issue is resolved, or the child is withdrawn from the application in the right way and at the right time, a partner visa child custody problem can lead to the refusal of the partner's own visa. The guide to why partner visas get refused explains how a single unmet criterion can bring down an otherwise strong case.

Is consent from the other parent always required for a partner visa?

No. Consent from the other parent is one of three ways to satisfy the partner visa child custody criteria, not the only way. PIC 4015 and PIC 4017 require the decision maker to be satisfied of one of three matters: the home country law permits the child's removal, each person who can lawfully determine where the child lives consents, or the grant is consistent with an Australian child order. Any one is enough.

That said, consent is the most common and usually the simplest route. Where both parents share parental responsibility and the other parent is willing to sign, consent avoids arguments about foreign law and court orders. The other two routes become important when consent is not available. Understanding all three routes is the heart of partner visa child custody planning.

The first route: the law of the child's home country

The first route is met where the law of the child's home country permits the child to be removed from that country. This usually requires evidence of what the foreign law says and how it applies to this family. Some legal systems give one parent the right to decide where a child lives after divorce. Some require a court's permission to take a child overseas. Some require the consent of both parents regardless of any custody judgment. A bare statement that "the law allows it" is rarely enough. Where a family relies on this route for partner visa child custody, the evidence should identify the law, explain its effect and connect it to the child's own circumstances, for example through a court judgment or a formal legal opinion from the home country.

The second route: consent of each person who can lawfully determine where the child lives

The second route is met where each person who can lawfully determine where the child is to live consents to the grant of the visa. The word "each" matters. If two people share that right, both must consent. The migrating parent is the person bringing the child into the application, so the real question is about everyone else. The non-migrating parent, and any other person who shares the legal right, must give consent. For partner visa child custody purposes, the Department's form for this is Form 1229, supported by identity evidence for the person who signs.

The third route: an Australian child order

The third route is met where the grant of the visa would be consistent with any Australian child order in force for the child. This route matters most where the child already lives in Australia, or where an Australian court has made parenting orders. If an Australian order gives the migrating parent sole parental responsibility, or allows the child to live with that parent in Australia, the grant may be consistent with it. If an Australian order requires the child to spend time with the other parent in a way that cannot happen if the child stays, the partner visa child custody analysis becomes more careful. The exact wording of the order matters.

Who can lawfully determine where a child lives?

The person who can lawfully determine where a child lives is decided by the law that governs the child's care, which is usually the law of the child's home country or an Australian court order. In most countries, both parents share this right while the child is young, whether or not they were married and whether or not they still live together. That is why the other parent's position is the first question in any partner visa child custody assessment.

Department policy on partner visas notes that both parents generally have joint custody of a child unless this has been varied by a court order or by a parent's formal relinquishment. So the starting point for partner visa child custody is that the other parent has rights, even if they have not seen the child for years and even if they pay no support. A parent who has raised a child alone is often surprised by this, which is one reason families seek advice from an immigration lawyer for a partner visa before lodging. Day-to-day care does not, by itself, remove the other parent's legal rights.

Parents who were never married

Parents who were never married usually both have parental rights, although some legal systems treat an unmarried father differently, especially where paternity was never registered. The birth certificate is the first document to check. If the other parent is named, the starting assumption for partner visa child custody is that their consent or a court order will be needed. If no father is named and paternity was never established, the position may be different, but the evidence must explain it. The Department should not be left to guess why there is no second parent.

Guardians and other people with legal rights

A guardian, grandparent or other relative can also be a person who can lawfully determine where a child lives. This arises where a court has appointed a guardian, where a parent has died and another relative has taken legal responsibility, or where a child protection authority holds rights. Every person who holds that legal right must be identified. A partner visa child custody file that names only the biological parents may be incomplete if a court has given rights to someone else.

Children who live in Australia already

Some children already live in Australia, for example on a visitor or student visa with the migrating parent. The same partner visa child custody criteria still apply to an onshore application. If the other parent lives overseas, their consent or a court order is usually still needed. If the family has obtained parenting orders in an Australian court, those orders become central. The guide to moving from a tourist visa to a partner visa in Australia covers the visa side of an onshore move, and the Subclass 820 visa explainer sets out the onshore pathway in full. Where the parent's own visa history is complicated, the guide to a partner visa after a visa refusal and the guide to Schedule 3 criteria may also be relevant.

What partner visa child custody documents does the Department expect?

The Department expects partner visa child custody documents that prove who the child's parents are, who holds legal rights over the child, and how one of the three routes in PIC 4015 and PIC 4017 is met. In most cases that means the child's full birth certificate, the consent of the other parent on Form 1229 with that parent's identity document, and any court order or judgment about custody, guardianship or relocation. Where a parent has died, the death certificate is needed. Where the family relies on foreign law, evidence of that law is needed.

Partner visa child custody documents should be uploaded with the application, not saved for later. The Department can decide an application on the information before it. If the custody criterion is not met at the time of decision, the decision maker may refuse. An officer may first issue a section 56 request for more information, but there is no right to that request. Planning partner visa child custody evidence before lodgement avoids that risk. The 820 partner visa evidence checklist shows where custody documents sit beside the relationship evidence.

The child's birth certificate

The full birth certificate is the foundation of every partner visa child custody file because it shows who the law treats as the child's parents. A short extract that lists only the child's name and date of birth is often not enough. The certificate should name both parents where both were registered. If the certificate names a parent who has no involvement in the child's life, that parent still needs to be addressed. If the certificate names no second parent, the file should explain why.

Form 1229 consent from the other parent

Form 1229 is the Department's form for consent to grant an Australian visa to a child under 18, and it is the usual document for the consent route. The form is signed by the non-migrating parent or other person with parental responsibility. The Department asks for a certified copy of the child's birth certificate and a certified copy of an identity document of the consenting parent that shows their signature. A separate guide in this series explains how to complete Form 1229 itself. For partner visa child custody purposes, the key point is that the consent must come from the right person, must match their identity document, and must relate to the visa being applied for.

Identity documents for the consenting parent

The consenting parent's identity document allows the Department to check that the signature on the consent is real. A passport, national identity card, driver's licence or birth certificate can be used, but at least one document should show the parent's signature. Problems arise when the signature on the consent looks nothing like the signature on the identity document, or when the name is spelled differently. These problems are easy to fix before lodgement and hard to explain after the Department raises them. The Form 80 guide explains why consistent names and dates across every document matter.

Court orders, custody judgments and guardianship orders

Court orders are often the most important partner visa child custody documents. A divorce judgment, a custody order, a guardianship order or a parenting order can show that one parent has sole legal responsibility for deciding where the child lives. Where such an order exists, the other parent's consent may not be needed, because that parent may no longer be a person who can lawfully determine where the child lives. The Department's consent form itself refers to legal documents, travel orders and court orders as evidence that a parent is solely responsible for decisions about where a child lives.

Translations and certified copies

Any partner visa child custody document that is not in English needs an accurate English translation. Court judgments in particular should be translated in full, not summarised, because the decisive words are often in the reasons or in a single operative paragraph. Where the Department asks for certified copies, the copies should be certified in line with its current requirements. A translated court order that leaves out the paragraph about travel or residence can create more questions than it answers.

Parenting orders and overseas custody judgments

Parenting orders and overseas custody judgments are the main way to satisfy partner visa child custody rules when the other parent will not or cannot consent. The order must be read closely. What matters is whether it gives the migrating parent the right to decide where the child lives, including in another country, and whether it leaves the other parent any right that the migration would breach.

Australian parenting orders

Australian parenting orders are made under the Family Law Act 1975. They can deal with parental responsibility, who the child lives with, and the time the child spends with each parent. Where an Australian child order is in force, PIC 4015 and PIC 4017 can be met if the grant of the visa would be consistent with it. If a family is already in Australia and parenting arrangements are disputed, parenting orders may be the most direct route to satisfy partner visa child custody requirements. Family law advice is separate from migration advice, and the partner visa lawyer guide explains what a migration lawyer does in a partner case. The two need to be coordinated so that the orders sought actually answer the migration question.

Overseas custody judgments

An overseas custody judgment can satisfy partner visa child custody requirements under the home country law route, the consent route or both, depending on what it says. A judgment that gives one parent sole custody and expressly allows that parent to decide the child's residence, including outside the country, is strong evidence. A judgment that gives one parent "custody" but leaves the other parent "guardianship" or a right to approve travel may not be enough. Terms such as custody, guardianship, care, residence and parental authority mean different things in different legal systems. The translation, and sometimes a legal explanation from the home country, must make the effect clear.

Orders that are silent about moving overseas

Orders that are silent about moving overseas are a common partner visa child custody trap. Many divorce judgments simply say that a child will live with the mother or the father. They say nothing about taking the child to another country. Under some legal systems, the parent who has the child day to day can move freely. Under others, the other parent's consent or a further court order is still needed. Where the order is silent, the family should not assume that it is enough. The safer course is to obtain consent as well, or to obtain a further order that deals with relocation.

Sole custody documents

Sole custody documents are any documents showing that only one person can lawfully determine where the child lives. They include a sole custody order, a guardianship order, a judgment terminating the other parent's rights, an adoption order and, where relevant, a death certificate. When a parent relies on sole custody, the partner visa child custody file should present the document, its translation and a short explanation of why it means no other consent is needed. That explanation is usually given in a submission with the application. The Form 956 and 956A guide explains how a representative is appointed to make submissions of that kind.

What happens to partner visa child custody if the other parent has died?

If the other parent has died, partner visa child custody is usually resolved by the death certificate, because a deceased parent is no longer a person who can lawfully determine where the child lives. The certificate should be certified, translated where needed, and match the details on the child's birth certificate. If names are spelled differently, a short explanation and supporting documents should be provided.

The death of one parent does not always mean the surviving parent alone holds the legal right. In some countries, a grandparent, an uncle or a court-appointed guardian may share responsibility after a parent dies. In others, a court must confirm the surviving parent's sole authority. Before relying on the death certificate alone, the family should check whether anyone else has acquired legal rights over the child. A careful partner visa child custody file covers that point instead of leaving it open.

Where the death certificate cannot be obtained, for example because records were destroyed or the death occurred during conflict, other evidence can be used. That may include a court declaration, hospital or burial records, statements from family members and an explanation of why the official certificate is not available. The decision maker must still be satisfied, so the evidence should be as official and contemporaneous as possible.

What if the other parent cannot be located?

If the other parent cannot be located, partner visa child custody can usually only be resolved through a court order or the home country law route, because a missing parent cannot sign a consent. The Department does not simply accept that a parent is missing. The family needs to show what reasonable steps were taken to find the parent, and then obtain an order or other legal basis that removes the need for that parent's consent.

Evidence of reasonable steps to find the other parent

Evidence of reasonable steps should show a real and documented search, not a single unanswered message. It may include letters sent to the last known address, messages to known phone numbers and social media accounts, enquiries with the parent's relatives and friends, searches of public registers, and enquiries through any court or agency that dealt with the family. Each step should be dated and documented. This evidence is useful in two ways. It supports an application to a court for orders, and it shows the Department that the partner visa child custody position has been dealt with responsibly.

Court orders where a parent is missing

Court orders are usually the practical solution where a parent is missing. Many legal systems allow a court to give one parent sole responsibility, to dispense with the other parent's consent, or to authorise the child's relocation where the other parent cannot be found. The court will normally want proof of the search. In Australia, parenting orders can be sought under the Family Law Act 1975 where the court has jurisdiction. The right court depends on where the child lives and the family's connection to each country. Getting this right early can save many months in a partner visa child custody case. Where a family is weighing whether to manage this alone, the guide to a partner visa lawyer vs doing it yourself sets out the trade-offs.

What if the other parent refuses consent?

If the other parent refuses consent, the partner visa child custody criteria can only be met through a court order, the home country law route or an Australian child order. The Department cannot override a parent's refusal. It also will not decide a family law dispute between the parents. So a refusal shifts the problem from the migration system to the family law system, and the migration timetable must allow for that.

Talking to the other parent first

Talking to the other parent first is often worthwhile, because many refusals come from fear rather than firm opposition. A parent may worry about losing contact, about child support, or about the child being taken somewhere they cannot visit. A clear written proposal for ongoing contact, video calls, holidays and travel costs can change the position. Any agreement reached should be recorded properly. A custody consent is a different document from a Form 888 supporting witness statement, which supports the couple's relationship, so the two should not be confused. Where it is safe and appropriate, a written parenting plan or consent orders can give both parents certainty and give the Department the partner visa child custody evidence it needs.

Applying to a court

Applying to a court is the main option when the other parent will not agree. The court will usually decide the question by reference to the child's best interests under its own law. It may allow the move, refuse it or allow it on conditions about contact. A partner visa application should not rely on a court case that has not been decided. If proceedings are on foot, the timing of the visa application, and whether the child should be included at lodgement, needs careful thought. Where a deadline is close, the guide to urgent immigration lawyer advice explains what to prepare.

Including or not including the child

Some families decide to lodge the partner application without the child while the custody dispute is resolved. That can protect the partner's own application from a "one fails, all fail" refusal. But it has consequences. A child who is not included cannot be granted a partner visa as part of that application, and a later pathway for the child may involve a different visa with its own criteria. Where the child is already included and a custody problem arises, the options for withdrawing the child or adding them later are technical and time sensitive. Any change in the family's circumstances must also be reported, which is explained in the guide to Form 1022 change of circumstances. These partner visa child custody decisions should be made with advice, before lodgement where possible. If the application has already been lodged without advice, the guide to hiring an immigration lawyer after lodgement explains how a representative can step in.

When the refusing parent has a history of violence

Where the refusing parent has a history of violence, the family's safety comes first. Contact with that parent may not be safe or appropriate. Court orders made with protective conditions, and evidence of the history, can help the partner visa child custody assessment. The migrating parent should not be pressured into contact that puts them or the child at risk. Where violence has occurred within the partner relationship itself, separate provisions may apply, and these are explained on the family violence partner visa page.

Child abduction concerns and the Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement about children wrongfully taken across borders, and Australia's migration law on partner visa child custody is designed in part to support Australia's obligations under it. Department policy on the best interests of minor children states that migration legislation seeks to help Australia meet its obligations under several international conventions that protect children under 18, including the Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction.

In general terms, the Convention allows a parent whose rights of custody were breached by a child's removal or retention in another member country to seek the child's return. A visa does not change that. A child who holds an Australian visa can still be the subject of return proceedings if the move breached the other parent's custody rights. This is one reason the partner visa child custody criteria matter. Meeting them properly, with the other parent's consent or a clear court order, protects the family from a later dispute that a visa grant cannot resolve.

Families should never use the visa process to move a child without the other parent's knowledge where that parent has legal rights. Doing so may expose the migrating parent to serious legal consequences in both countries, and it may lead to a refusal on partner visa child custody grounds or to later return proceedings. Where one parent fears the other may remove the child, or where a child has already been moved, specialist family law advice should be obtained at once.

How the best interests of the child are assessed in a partner visa

The best interests of the child are assessed under PIC 4016 and PIC 4018, and the question is whether there is any compelling reason to believe that the grant of the visa would not be in the child's best interests. Department policy, in the procedural instruction on section 5G best interests of minor children, says this is a separate and deliberative assessment. It must be made even when the partner visa child custody criteria in PIC 4015 and PIC 4017 have been met.

Policy explains that these criteria were introduced to help Australia meet its obligations under the Convention on the Rights of the Child, which says that in all actions concerning children, the best interests of the child shall be a primary consideration. Policy also says that best interests can be outweighed by other considerations, and that best interests cannot override the requirement that the child meets every other legal criterion for the visa, including health and character.

What best interests evidence looks like

Best interests evidence is usually the same evidence that shows a stable home in Australia. It includes information about where the child will live, who will care for them, their schooling, their relationship with the sponsor and the arrangements for ongoing contact with the parent who stays behind. Most partner visa child custody files do not need a separate best interests submission. But where something in the file raises a welfare question, a clear explanation should be given. The partner visa relationship statement guide explains how the couple's own account can describe the family's plans, including the role of the sponsor in the child's life.

Sponsor police checks where a child is included

Where a partner visa application includes a child under 18, the sponsor's criminal history becomes relevant to the child's safety. Department policy on sponsors of concern explains that, for the temporary partner visa stage and the Prospective Marriage visa, the sponsor may be asked for police checks, and that a conviction for, or unresolved charge of, a registrable offence can lead to refusal of the sponsorship under regulation 1.20KB. Other serious offences, such as violence or drug offences, may be referred for consideration under PIC 4016 and PIC 4018. This is part of the partner visa child custody picture that many sponsors do not expect. The partner visa sponsorship limitations page and the guide to when a sponsor cannot sponsor a partner visa explain the wider sponsor rules.

Hypothetical scenario: consent given but a welfare concern remains

Consider a hypothetical case. A mother applies for a Subclass 820 visa and includes her nine year old son. The father signs Form 1229, so the custody criterion is met. Later, the child's school in the home country writes to the Department raising a concern about a medical treatment that would be interrupted by the move. The officer cannot simply rely on the father's consent. The officer must consider whether the concern is a compelling reason under PIC 4016 and PIC 4018, and the mother must be given a chance to respond, for example with evidence of the treatment available in Australia. This shows why partner visa child custody and best interests are two separate questions.

Partner visa child custody at the permanent stage and when circumstances change

Partner visa child custody is tested again at the permanent stage, because clauses 801.225 and 801.324, and clauses 100.225 and 100.324, contain the same criteria as the temporary stage. Department policy says that for the permanent stage, decision makers can generally rely on the assessment made at the temporary stage, but they should check the notes and the evidence. Where there is doubt, they should make a fresh assessment and may ask for new evidence.

This matters when circumstances change between the two stages. A consenting parent may withdraw consent. A court may make new orders. A parent may die or reappear. Each of these events can change the partner visa child custody position. Changes in circumstances must be reported to the Department. A new court order should be provided promptly, with a translation. The guides to Subclass 820 processing times and how long the onshore partner visa takes explain why the gap between the two stages can be long enough for family circumstances to change. A relationship can also end during processing, which is covered in the guide to Subclass 820 relationship breakdown.

When the child turns 18 during processing

The secondary criteria in clauses 820.324, 801.324, 309.326 and 100.324 apply only if the child has not turned 18. Once a child turns 18, these partner visa child custody criteria in the secondary criteria no longer apply to that child at the time of decision, although other criteria about dependency and family unit membership then become important. The age and dependency questions are covered in separate guides in this series. The point here is that partner visa child custody planning is most important for younger children, and for any child who will still be under 18 when the decision is made.

Bridging visas and travel for the child

A child included in an onshore application is usually granted a bridging visa in the same way as the main applicant. Travel during processing raises its own issues, and work rights for the adult applicant are explained in the guide to working while a Subclass 820 visa is pending. The guides to Bridging visa A, Bridging visa B and bridging visas in Australia explain the rules. Where the other parent has not consented to the child leaving Australia, travel should not be booked until the custody position is clear.

Partner visa child custody for non-migrating children

Partner visa child custody consent is generally not needed for a child who is not migrating, because the custody criteria apply to children who made a combined application. A non-migrating child is a child who stays in the home country, usually with the other parent. The child is not an applicant, so PIC 4015 and PIC 4017 do not need to be met for that child.

Non-migrating children still have to be declared in the application. For the Subclass 820 visa, clause 820.224(1A) requires members of the family unit who are not applicants to satisfy certain character and health criteria, and the health examination can be waived where the decision maker is satisfied it would be unreasonable to require it. Similar rules apply to the other partner subclasses. Where a non-migrating child lives with a former partner who refuses to cooperate with health or character checks, that is a different problem from partner visa child custody, and a separate guide in this series deals with it. Failing to declare a child can create serious integrity problems, so every child should be listed.

What Tribunal decisions show about partner visa child custody

Tribunal decisions show that partner visa child custody issues are regularly argued on review, and that evidence provided at review can change the result. The following decisions come from a database of partner visa review decisions that were remitted to the Department for reconsideration. In Haynes (Migration) [2020] AATA 3293, a Subclass 820 matter, the reported issues included an additional applicant who was a dependent child of the primary applicant, permission to migrate under the law of the home country and the parents' consent. In TSVANHU (Migration) [2022] AATA 2027, a Subclass 309 matter, the reported issues included a secondary applicant grandson under the custody and guardianship of the primary applicant grandfather, where the child's mother had died and court orders from the home country were provided to the tribunal.

These decisions were remitted, which means the Tribunal sent the matter back to the Department to decide again with directions or findings. They do not guarantee any result in another case. They do show that the custody route chosen, the court orders relied on, and the way foreign law is explained can all affect a partner visa child custody assessment. The Administrative Review Tribunal replaced the former tribunal on 14 October 2024. Review applications must be lodged within a short time limit that is strictly applied. The guides to partner visa refusal appeal options and what to expect at an ART review explain the process. For refusals, see the partner visa refusals page, the general visa refusals page and the guide to choosing a visa appeal lawyer. The guide to why Subclass 820 visas are refused lists the most common grounds.

Common partner visa child custody mistakes

The most common partner visa child custody mistakes are assuming that day-to-day care equals legal custody, lodging without the other parent's consent, and relying on a court order that does not deal with relocation. Each of these can lead to a request for more information, a natural justice letter or a refusal. The guide to responding to a section 57 natural justice letter explains what happens when the Department puts adverse information to an applicant.

Other common mistakes include providing a partial translation of a court judgment, providing a consent signed by someone whose identity cannot be checked, and failing to address a parent named on the birth certificate who has never been involved. Some families also forget that a custody arrangement may change after lodgement. A parent who signed consent two years earlier may have since changed their mind, or new orders may have been made. Each of these issues can be avoided with careful partner visa child custody planning.

A final mistake is treating partner visa child custody as an afterthought, to be fixed after the relationship evidence is ready. Custody often takes longer to resolve than any other part of the application, especially if a court is involved. It should be one of the first matters assessed, alongside the sponsor's eligibility and the evidence described in the partner visa relationship evidence guide.

How My Migration Lawyers handles partner visa child custody and consent

My Migration Lawyers handles complex partner visa child custody cases, including cases where the other parent cannot be located, refuses to consent or lives in a country whose custody law is unclear. The firm acts in many partner matters that include children from a previous relationship and is capable of managing the migration side of these cases while working alongside family lawyers in Australia and overseas. No firm can promise an outcome. What the firm can do is make sure the partner visa child custody position is assessed early, documented properly and presented in the form the law requires.

What the firm does on a partner visa child custody matter, step by step

The work usually follows a clear sequence. First, the firm reviews the child's birth certificate, any divorce or custody judgment, any guardianship order and any existing Australian parenting orders. Second, it identifies every person who can lawfully determine where the child lives, under the law that applies to that child. Third, it decides which route in PIC 4015 and PIC 4017 is available: consent, home country law or an Australian child order. Fourth, it checks that consent documents and identity documents match and that translations are complete. Fifth, where consent is unavailable, it explains what the court order needs to say and coordinates with the family's family lawyer so that the orders sought answer the migration question. Sixth, it prepares a submission explaining the partner visa child custody position and the child's best interests, so the decision maker does not have to work it out alone. Finally, it monitors the position through to the permanent stage, including any change in orders or consent.

The firm does not act in the family law proceedings themselves unless separately engaged for that work. Its role is to make sure the custody documents and orders, whatever court makes them, satisfy the migration criteria. Families who already have advice can ask for an immigration lawyer second opinion on the custody documents. An immigration lawyer consultation is usually the first step. Where a partner visa child custody issue has already led to a refusal, the firm can review the decision and advise on review options, provided the review deadline has not passed.

Who works on partner visa child custody files

Partner visa child custody matters are supervised by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and the firm's partner visa lawyers service. The firm works with clients across Australia, including through its pages for partner visa lawyers in Sydney, partner visa lawyers in Melbourne, partner visa lawyers in Brisbane, partner visa lawyers in Perth, partner visa lawyers in Adelaide, partner visa lawyers on the Gold Coast, partner visa lawyers in Canberra, partner visa lawyers in Hobart and partner visa lawyers in Parramatta. Consultations are held by video, so families overseas can also take part.

Book a consultation about partner visa child custody and consent

If a child from a previous relationship is part of your partner visa plans, the custody position should be checked before you lodge. Bring the child's birth certificate, any court orders or judgments, and any messages with the other parent about the move. Book a Consultation with My Migration Lawyers to have your partner visa child custody documents reviewed. You can also call 1300 040 300.