Key Takeaways
- Partner visa stepchildren can be included in a partner visa application only if they meet the regulation 1.03 definition of "dependent child" of the applicant, which covers a child or step-child who is under 18, or who is 18 or over and dependent, and who is not married, engaged or in a de facto relationship.
- In law, a step-child is a child of a person's current spouse or de facto partner, or a child of a former spouse or former de facto partner who is under 18 and for whom the person holds a parenting order, guardianship or custody.
- Most children described as partner visa stepchildren are the applicant's own children who become the sponsor's stepchildren. They are included as the applicant's children, and the sponsor's role is as sponsor, not as a parent.
- A child under 18 included in the application must satisfy the custody and consent criterion in PIC 4015 and the best interests criterion in PIC 4016. If the child fails, the whole family is refused under the "one fails, all fail" rule.
- A step-parent cannot give consent in place of a biological parent who still has the right to decide where the child lives. That parent's consent, a court order or the law of the home country must deal with the custody question.
- Evidence must prove each link in the chain: the child's parentage, the relationship that makes the child a stepchild, any court orders, consent, and dependency for children aged 18 or over.
What are partner visa stepchildren?
Partner visa stepchildren are children who are connected to a partner visa applicant through a relationship rather than by birth or adoption, and the question for every family is whether a particular stepchild meets the legal definition that allows the child to be included in the application. The phrase "partner visa stepchildren" is not a legal term. It is how families describe a situation that the Migration Regulations 1994 deal with through precise definitions of "child", "step-child", "dependent child" and "member of the family unit".
The rules on partner visa stepchildren matter because a blended family is common in partner visa cases. One partner may have children from an earlier marriage. Both partners may have children. A child may be living with a grandparent overseas, or with the other biological parent, or with the couple in Australia. Each of these arrangements changes whether the child can migrate with the applicant, what consent is needed, and what documents the Department of Home Affairs will expect.
This guide explains how partner visa stepchildren are defined in law, when a stepchild can be included in an application for the onshore Subclass 820 visa or the offshore Subclass 309 visa, how children of a former partner are treated, whether the Australian sponsor's own stepchildren matter, how the member of the family unit rules apply, how the custody, consent and best interests criteria work, and which documents prove the relationship. The wider framework is explained in the complete guide to partner visas in Australia.
Why the definitions decide the outcome
The definitions decide the outcome because a partner visa can only be granted to a child who fits the category the regulations describe. A child who does not meet the definition of a dependent child cannot satisfy the secondary criteria, however close the family is in practice. Equally, a child who does fit the definition brings additional criteria with them, including the custody and best interests requirements, and those criteria can affect the primary applicant's own visa. Getting the classification of partner visa stepchildren right at the start is therefore not a technicality. It is the foundation of the whole family application. The guide to the Subclass 820 visa explained sets out how secondary applicants fit into the onshore process, and the guide on when you need an immigration lawyer for a partner visa explains why blended family cases are among those where early advice is most useful.
A common misunderstanding about partner visa stepchildren
Many families assume that any child living in the household can be added to the partner visa, or that a child becomes a stepchild for migration purposes simply because the couple treats the child as their own. Neither assumption is correct. The regulations look at legal relationships: who the child's parents are, whether the applicant is in a current relationship with the child's parent, and, for a child of a former partner, whether there is a court order or guardianship. Love and day-to-day care are important to the child, but they do not on their own create a step-child relationship in migration law.
How the law defines a child, a stepchild and a dependent child
The law defines partner visa stepchildren through three connected provisions: section 5CA of the Migration Act 1958, which deals with who is a child of a person; the definition of "step-child" in regulation 1.03 of the Migration Regulations 1994; and the definition of "dependent child" in regulation 1.03, which draws on the meaning of "dependent" in regulation 1.05A. Each one must be read in order.
Section 5CA: who is a child of a person
Section 5CA of the Migration Act 1958 deals with when someone is the child of a person for the purposes of the Act. In broad terms, it picks up a child of the person within the meaning of the Family Law Act 1975 and allows the regulations to say more. Adoption is dealt with separately in regulation 1.04, which covers formal adoption under Australian or foreign law and, in limited cases, arrangements in the nature of adoption made under a recognised custom. A biological child or an adopted child of the applicant is the applicant's child. That child is not a stepchild of the applicant.
Regulation 1.03: the definition of step-child
Regulation 1.03 defines a step-child, in relation to a parent, in two limbs. The first limb is a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner. The second limb is a person who is not the child of the parent but who is the child of the parent's former spouse or former de facto partner, who has not turned 18, and in relation to whom the parent has either a parenting order under the Family Law Act 1975 under which the child is to live with the parent or the parent is responsible for the child's long-term or day-to-day care, welfare and development, or guardianship or custody, jointly or otherwise, under an Australian or foreign law.
The first limb is the ordinary case. It applies while the relationship with the child's parent continues. The second limb is narrow. It only applies to a child under 18, and only where a court order or legal guardianship gives the step-parent formal responsibility for that child.
Regulation 1.03: the definition of dependent child
A dependent child of a person is the child or step-child of the person, other than a child or step-child who is engaged to be married or has a spouse or de facto partner, who either has not turned 18, or has turned 18 and is dependent on that person. This is the definition that controls who can be included in a partner visa application as a secondary applicant. It is why the rules on partner visa stepchildren always come back to two questions: is the child a child or step-child of the applicant, and is the child a dependent child?
Regulation 1.05A: what dependent means
For a child aged 18 or over, dependency has a strict meaning. Under regulation 1.05A, a person is dependent on another person if they are, and have been for a substantial period immediately before the relevant time, wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter, and that reliance is greater than their reliance on any other person or source. A person is also dependent if they are wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of bodily or mental functions. Emotional closeness or living in the same house does not meet this test on its own.
Can partner visa stepchildren be included in a partner visa application?
Yes. Partner visa stepchildren can be included in a partner visa application if they are a dependent child of the applicant, because the regulation 1.03 definition of dependent child expressly includes a step-child. A stepchild who is not a dependent child, for example because they are married, engaged, in a de facto relationship, or 18 or over and not dependent, cannot be included and would need to consider a different visa.
The secondary criteria for each partner visa subclass set out who can apply with the primary applicant. The Department's procedural instruction for the Subclass 820 visa explains that the secondary criteria must be satisfied by applicants who are a dependent child, or in some cases a member of the family unit, of a person who satisfies the primary criteria. The Subclass 820 partner visa guide and the guide to 820 visa requirements, documents and how to apply set out the primary criteria that the parent must meet first.
Partner visa stepchildren and the sponsorship
The sponsorship must also cover the child. For the Subclass 820 visa, paragraph 820.311(b) requires that the sponsorship, if any, in respect of the primary applicant includes the secondary applicant. In practice, the sponsor lists the children who are migrating so that the sponsorship extends to them. This is one of the points where partner visa stepchildren most directly involve the Australian sponsor, because the sponsor is accepting sponsorship obligations for a child who may not be their own. The sponsor's role and its limits are explained in the guide to when a sponsor cannot sponsor a partner visa.
Timing: application and decision
The child must be a dependent child at the time required by the criteria, and the primary applicant's application must still be undecided when the child's application is decided. Paragraph 820.311(c) requires that the Minister has not yet decided to grant or refuse the primary applicant's visa. Ages and relationships can change during processing. A stepchild who turns 18 during a long processing period, or who marries, may stop meeting the dependent child definition. The guides on how long a Subclass 820 partner visa takes and onshore processing times explain why this matters for older children.
Partner visa stepchildren: the child of the applicant's partner versus the child of the applicant
The most important distinction in partner visa stepchildren cases is whose child the child is. A child of the visa applicant is included as the applicant's own child. A child of the Australian sponsor is the applicant's step-child under the first limb of the definition, but in most cases that child is already an Australian citizen or permanent resident and does not need a visa at all.
The applicant's own children
When people talk about partner visa stepchildren, they usually mean the applicant's children from an earlier relationship who will become the sponsor's stepchildren. In migration law, these children are included in the application as the applicant's own children. The sponsor is their step-parent, but the child's eligibility does not depend on the step-parent relationship. It depends on the child being the applicant's dependent child.
This is a point that is often misunderstood. Families sometimes believe the sponsor must adopt the child, or must prove a separate bond with the child, before the child can be included. That is not what the law requires. What the law does require is that the custody and consent criteria are satisfied for any child under 18, which usually means dealing with the rights of the child's other biological parent. That issue is explained later in this guide.
The sponsor's children
A child of the sponsor is the applicant's step-child while the relationship continues. If the sponsor's child is an Australian citizen, the child does not need a visa and is not a secondary applicant. If the sponsor's child is not an Australian citizen or permanent resident, the definition of dependent child is wide enough on its face to cover the child as the applicant's step-child. Whether that is the best pathway for that child depends on the child's own status and the other options available, and it should be assessed carefully before any application is lodged.
Children of both partners
A child of both the applicant and the sponsor is a child of each of them. That child is not a stepchild. Children born to the couple in Australia are often Australian citizens at birth, depending on the sponsor's status at the time. The Subclass 801 procedural instruction notes that a newborn child is added to the application unless the child became an Australian citizen at birth, which will often be the case. The distinction matters for the long-term partner relationship concession discussed later, which counts a dependent child of both partners but expressly excludes a step-child.
Same-sex and de facto families
The same definitions apply to married couples, de facto couples and same-sex couples. A child of the applicant's de facto partner is a step-child under the first limb in the same way as a child of a spouse. Same-sex couples who are raising children from earlier relationships should also read the LGBTI partner visa page, and de facto couples should check the 12-month de facto relationship requirement, because the partner relationship must be established before any question about partner visa stepchildren arises. A partner visa lawyer can confirm how the definitions apply to a particular family, and the guide comparing a partner visa lawyer with doing it yourself explains where the risks usually lie.
Children of a former partner: when they still count as partner visa stepchildren
A child of the applicant's former spouse or former de facto partner counts as a step-child only if the child is under 18 and the applicant holds a parenting order, guardianship or custody for the child. Without one of those formal arrangements, the child of a former partner is not the applicant's step-child, and cannot be included in the partner visa application as the applicant's dependent child.
This second limb of the step-child definition is where many partner visa stepchildren cases go wrong. A common example is a widowed applicant who has continued to raise the children of a late spouse. Another is an applicant who separated from a former partner but kept caring for that partner's child from another relationship. In both situations the applicant may be the only parent figure the child has known. The law still asks for a legal basis: a parenting order under the Family Law Act 1975 or legal guardianship or custody under Australian or foreign law.
Why the court order matters
The court order or guardianship is not a formality. It is the element that turns a caring relationship into a step-child relationship for migration purposes. A family that has relied on informal arrangements for years may need to obtain formal orders in the country where the child lives before the child can be included. Where the arrangement was a customary adoption rather than guardianship, the separate rules on adoption in regulation 1.04 may need to be considered instead. The Department's application form guidance also asks for a certified copy of the overseas or Australian court order relied on.
What happens at 18
The second limb only applies to a child who has not turned 18. Once the child of a former partner turns 18, that child is no longer a step-child under the second limb, even if the order is still in force. This means a former partner's child who is close to 18 may lose eligibility during processing. The first limb, a child of the applicant's current partner, does not have the same age cut-off in the definition itself, although the dependent child and member of the family unit rules then apply their own age and dependency tests. Families in this position should take advice early, before lodging, because the order of applications and the choice of visa can make a real difference. The guide to urgent immigration lawyer advice explains when timing becomes critical.
Death of the former partner
Where the former partner has died, the death certificate is part of the evidence chain. It explains why the applicant has care of the child, and it is relevant to the custody and consent question, because a deceased parent cannot consent. However, a death certificate alone does not create a step-child relationship under the second limb. The applicant still needs to show guardianship, custody or a parenting order. The same distinction applies to partner visa stepchildren whose biological parent is alive but has had no contact for many years: absence does not remove that parent's legal rights unless a court or the law says so.
Do the Australian sponsor's own stepchildren matter?
Yes, the Australian sponsor's stepchildren matter, but in a different way from the applicant's. The sponsor's stepchildren are usually the applicant's own children, and the sponsor's main role is to include them in the sponsorship, accept the sponsorship obligations, and, where a migrating child is under 18, meet the police check requirements that protect children.
The sponsorship covers the children
When the applicant's children migrate, the sponsor's sponsorship must include them. The sponsorship form asks the sponsor about every member of the visa applicant's family unit, including children who are not migrating. The sponsor therefore needs accurate details of the applicant's children and stepchildren. Inconsistencies between what the applicant declares and what the sponsor declares create avoidable credibility problems. The guides to Form 80 and the partner visa document checklist explain how family details should line up across forms.
Sponsor police checks where children are included
Where a partner visa application includes an applicant under 18, the child protection rules in regulation 1.20KB apply to the sponsorship. The Department may ask the sponsor for Australian and overseas police checks. If the sponsor has a conviction or an unresolved charge for a registrable offence, the sponsorship may be refused for all of the applicants, subject to limited discretion. If a requested police check is not provided within a reasonable time, the sponsorship may also be refused. These rules are part of why partner visa stepchildren cases receive closer attention than applications for a couple alone. The wider sponsor rules, including the separate police check requirements in regulation 1.20KC, are explained on the sponsorship limitations page.
The sponsor's stepchildren from earlier relationships
The sponsor may also have stepchildren of their own from an earlier relationship, such as the children of a former spouse. Those children are not the applicant's children or stepchildren, and they are not part of the applicant's family unit merely because the sponsor knows them. They may still be relevant in other ways. For example, they may live in the household, they may appear in the relationship evidence, and their presence may be part of how the couple's daily life is described in the relationship statement.
The sponsor's children and the household
The nature of the household is one of the four matters a decision maker considers when assessing whether the relationship is genuine. Subregulation 1.09A(3) for de facto couples, and subregulation 1.15A(3) for married couples, refer to any joint responsibility for the care and support of children. Partner visa stepchildren can therefore be useful relationship evidence. A couple who share school runs, medical appointments and decisions about the children are showing the household in action. The guides to partner visa relationship evidence and preparing evidence of a genuine relationship explain how this fits into the wider picture.
Member of the family unit rules for partner visa stepchildren
Under regulation 1.12(2) of the Migration Regulations 1994, a person is a member of the family unit of the family head if they are a child or step-child of the family head, or of the family head's spouse or de facto partner, who is not engaged to be married and does not have a spouse or de facto partner, and who has not turned 18, or has turned 18 but not 23 and is dependent on the family head or the family head's partner, or has turned 23 and is dependent because of incapacity for work under paragraph 1.05A(1)(b). A dependent child of such a person is also a member of the family unit.
This is the definition that decides which partner visa stepchildren are part of the applicant's family unit for the purposes of the Act and the regulations, whether or not they are migrating. It is broader than the definition of dependent child in two ways. It expressly includes a step-child of the family head's partner, and it sets the upper age at 23 for dependency other than incapacity.
Why the member of the family unit test matters
The member of the family unit test matters for two reasons. First, in some partner visa pathways, such as an applicant who held a Subclass 300 prospective marriage visa, the secondary criteria allow a member of the family unit, not only a dependent child, to apply. Second, and more often, the family unit test decides which children must be declared and must meet health and character requirements even if they are not migrating.
Non-migrating stepchildren still count
A stepchild who is a member of the family unit but is not applying still affects the application. Under subclause 820.224(1A), the primary applicant cannot be granted a Subclass 820 visa unless each member of the family unit who is not an applicant meets certain public interest criteria, including health assessment under PIC 4007 unless the delegate is satisfied that it would be unreasonable to require it. This is one of the most overlooked points about partner visa stepchildren. A child who will stay overseas with the other parent can still be part of the family unit, and still needs to be declared accurately.
Declaring partner visa stepchildren correctly
The application form, Form 80 and the sponsorship all ask about family members. Every child and stepchild who meets the family unit definition must be disclosed, whether or not they are migrating. Leaving out a child can lead to problems later under the integrity rules, and it can affect a child's ability to migrate in future. If details change after lodgement, for example a stepchild marries or comes to live with the couple, the change must be notified. The guide to Form 1022 change of circumstances explains how.
Dependency for adult partner visa stepchildren
Adult partner visa stepchildren aged 18 or over can only be included if they are dependent within the meaning of regulation 1.05A, which requires substantial and long-standing financial reliance for basic needs, or reliance because of incapacity for work. A stepchild who is working, studying with independent support, or receiving support mainly from someone else will not usually meet this test.
The test is financial and comparative
The dependency test has three practical parts. The reliance must be for basic needs: food, clothing and shelter. It must have existed for a substantial period immediately before the relevant time. It must be greater than the child's reliance on any other person or source. A stepchild who receives some help from the applicant but most of their support from the other biological parent will not meet the test. Partner visa stepchildren who are adults often have more than one source of support, which is why this question needs careful evidence.
Age limits that apply
For the dependent child definition in regulation 1.03, a child who has turned 18 can be a dependent child if they are dependent on that person. For the member of the family unit definition in regulation 1.12, a child aged 18 to 22 must be dependent on the family head or the family head's partner, and a child aged 23 or over must be dependent because of incapacity for work. A stepchild who is married, engaged or in a de facto relationship is excluded from both definitions, at any age.
Evidence of dependency
Evidence of dependency for adult partner visa stepchildren typically includes records of money transfers or direct payment of rent, school or university fees, food and living costs, evidence of the child's income or lack of income, evidence of where the child lives, and statements explaining the arrangement and how long it has lasted. Where dependency arises from incapacity, medical evidence is required. The 820 partner visa evidence checklist covers the broader evidence gathered for the application.
Partner visa stepchildren in onshore and offshore applications
The definitions that govern partner visa stepchildren are the same for the onshore Subclass 820 and Subclass 801 visas and for the offshore Subclass 309 and Subclass 100 visas, because they come from regulations 1.03, 1.05A and 1.12. The practical issues are different. Onshore, the child must usually be in Australia and must deal with any visa status problems of their own. Offshore, the child usually applies from the home country with the parent.
Onshore applications
For an onshore application, a child who is in Australia without a substantive visa may have to satisfy the Schedule 3 criteria, as the primary applicant would. Clause 820.312 applies those criteria to secondary applicants who do not hold a substantive visa at the time of application, unless there are compelling reasons not to apply them. The guides to Schedule 3 criteria for unlawful applicants and the Schedule 3 partner visa waiver explain the test. Children who came to Australia on a visitor visa face the same questions as their parent, which are covered in the guide to moving from a tourist visa to a partner visa.
Offshore applications
For an offshore application, partner visa stepchildren usually apply with the parent from outside Australia, and the consent and custody evidence is often governed by the law of the child's home country. Where the other biological parent lives in a third country, obtaining consent or a court order may take time. These steps should be started well before lodgement. My Migration Lawyers assists families with children living abroad, including partner visa clients in Sydney and in other cities.
New Zealand citizen families
Where the sponsor is a New Zealand citizen who is not an eligible New Zealand citizen, the Subclass 461 visa may be relevant to the family instead, and its own family unit rules must be checked.
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Custody and consent for partner visa stepchildren
Every child under 18 who makes a combined application with the primary applicant must satisfy the custody criterion in PIC 4015 and the best interests criterion in PIC 4016, and if the child does not, the primary applicant cannot be granted the visa. For the Subclass 820 visa this rule is in clause 820.225, and the same approach applies at the permanent stage under clause 801.225.
The custody criterion is about the rights of other people who have a say in where the child lives. In general terms, PIC 4015 is satisfied if the law of the child's home country permits the child's removal, or if each person who can lawfully determine where the child is to live consents to the grant of the visa, or if the grant would be consistent with any Australian child order in force for the child. For partner visa stepchildren, the person whose rights most often need to be dealt with is the child's other biological parent.
The step-parent cannot replace the other parent's consent
A step-parent's consent does not replace the consent of a biological parent who still has the legal right to decide where the child lives. This is one of the most common errors in partner visa stepchildren cases. The Australian sponsor may be fully committed to the child, and the applicant may have cared for the child alone for years. If the child's other parent has not lost or given up their rights by court order, by the operation of law or by formal relinquishment, that parent's position must be addressed.
The Department's policy 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 expressed wish, such as formal relinquishment. A parenting order, a sole custody order, or evidence that the home country's law permits removal can satisfy the criterion in place of consent. The guide to booking an immigration lawyer consultation explains how these issues are reviewed at the first meeting.
Consent forms and statements
The Department publishes a form for a parent or other person with legal rights to consent to the grant of an Australian visa to a child under 18, commonly referred to as Form 1229. The consent must come from the person who holds the legal right, it must identify the child, and it is usually supported by a copy of that person's identity document. Where consent cannot be obtained, for example because the other parent cannot be located or refuses, the family must rely on a court order or the law of the home country. Obtaining a court order is often a separate legal process in the child's country, and it should be started early.
"One fails, all fail"
The Department describes the effect of clause 820.225 as a "one fails, all fail" rule. If one child in the application does not satisfy PIC 4015 or PIC 4016, the primary applicant does not meet the primary criteria and every applicant must be refused. This is why partner visa stepchildren issues are never side issues. An unresolved custody question about one child can stop the whole family's visa, including the parent's. Couples who are considering whether to include a child at all should weigh this risk carefully, together with the options for the child to join later. Refusal risks of this kind are discussed in the guides to why partner visas get refused and the most common Subclass 820 refusal reasons.
The best interests of the child in partner visa stepchildren cases
The best interests of the child is a separate legal requirement under PIC 4016 for the primary applicant and PIC 4018 for the child as a secondary applicant, and the Department's policy says it must be assessed separately from custody, not assumed to be met because consent has been given. For partner visa stepchildren, this means the decision maker can look beyond the consent documents to whether granting the visa would be against the child's best interests.
How the best interests criteria operate
The Department's policy explains that PIC 4016 and PIC 4018 are written in the negative. Officers assess them on the evidence already provided, and are not expected to seek more information unless there are compelling reasons to suspect that the grant of the visa would not be in the best interests of the child. Where a court has already considered the child's best interests in making a parenting order, an officer may be able to rely on that order. In the ordinary case, a well-documented family with clear consent will not face a detailed best interests inquiry.
When the best interests question becomes serious
The best interests question becomes serious when there is evidence of risk. The policy links PIC 4016 and PIC 4018 to the sponsor police checks under regulation 1.20KB. Where police checks disclose serious offences, the case may be referred to a specialist unit of the Department for consideration. The policy is clear that a refusal on these grounds must be based on evidence, not suspicion, and that all the circumstances must be considered, including information received through a natural justice process. If the Department raises concerns, the guides to responding to a section 56 request and the s57 natural justice letter for a partner visa explain the process.
Partner visa stepchildren and the relationship assessment
A genuine relationship between the parent and the sponsor does not by itself decide the child's best interests. The Department's child protection policy says the partner relationship is relevant only to the extent that it contributes to the arrangements for the child's protection. Equally, the presence of partner visa stepchildren does not weaken a genuine relationship. Couples should present the family as it actually is, with the children's arrangements explained clearly in the evidence and in the partner visa relationship statement.
Documents for partner visa stepchildren
The documents for partner visa stepchildren must prove each link in the chain: the child's identity and parentage, the relationship that makes the child a child or stepchild of the applicant, any court order or guardianship, the custody and consent position, and dependency for any child aged 18 or over. A missing link anywhere in the chain is a missing criterion.
Identity and parentage
The core document is the child's full birth certificate naming both parents, together with the child's passport or identity document. Where the child was adopted, the adoption order or evidence of the customary arrangement under regulation 1.04 is needed. The Department may ask for DNA testing where it is not satisfied that a claimed biological relationship is established by the documents. Documents not in English must be translated.
The relationship that creates the stepchild
For a child of the applicant's current partner, the evidence of the partner relationship itself, such as a marriage certificate or evidence of the de facto relationship, establishes the step-child link. For a child of a former partner, the documents must show the former relationship, the child's parentage, and the parenting order, guardianship or custody order relied on. Where a former partner has died, a death certificate explains the family position. The broader relationship evidence is covered in the guide to the de facto partner visa and the 12-month rule.
Custody and consent documents
Custody documents typically include a consent from each person who can lawfully determine where the child lives, with a copy of their identity document, or a court order giving the applicant sole parental responsibility or permission to relocate, or evidence of the home country's law. Any existing court orders about the child, from Australia or overseas, should be provided in full, including orders about contact, because an Australian child order can affect whether PIC 4015 is met.
Dependency documents for adult stepchildren
For a stepchild aged 18 or over, the dependency documents described earlier are needed: financial records showing support for basic needs over a substantial period, evidence of the child's own income or lack of it, and evidence of where the child lives. For incapacity, medical evidence is needed.
What the family does not need to provide
Families do not need to obtain their own records of past visas or immigration history for partner visa stepchildren. Where My Migration Lawyers acts, the firm obtains the family's immigration history itself. The family's task is to provide the personal documents only they hold. The process of uploading documents is explained in the guide on how to create an ImmiAccount.
Partner visa stepchildren at the permanent stage and if the relationship changes
Partner visa stepchildren must continue to meet the relevant criteria at the permanent stage, because clause 801.225 applies the custody and best interests criteria again to children under 18, and the step-child relationship under the first limb depends on the applicant's relationship with the child's parent continuing.
The permanent stage
At the Subclass 801 or Subclass 100 stage, the Department's policy says delegates can generally rely on the earlier custody assessment, but must consider any change in circumstances. A new court order, a change in where the child lives, or a parent withdrawing consent can all matter. The Subclass 820 vs Subclass 801 guide explains the two-stage process. While the family waits, most onshore applicants hold a bridging visa, explained in the guides to bridging visas in Australia and work rights while waiting for a Subclass 820 visa.
The long-term partner relationship concession excludes stepchildren
The long-term partner relationship concession can allow the permanent visa to be granted without the usual two-year wait. The Department's Subclass 801 policy describes a long-term partner relationship as one of not less than three years, or not less than two years if there is a dependent child, other than a step-child, of both the applicant and the sponsor. Partner visa stepchildren therefore do not shorten the required period. Only a child of both partners does.
If the relationship with the sponsor ends
If the relationship ends, the position of partner visa stepchildren depends on whose child they are. The applicant's own children remain the applicant's children. A child of the sponsor stops being the applicant's step-child under the first limb once the relationship ends, unless a court order brings the child within the second limb. Subparagraph 801.221(6)(c)(ii) allows the permanent visa to be granted in some cases where the applicant has custody of, or access to, a child and the sponsor has custody, access or maintenance obligations for the same child. Families in this situation should read the guide on what happens if the relationship breaks down, and where family violence is involved, the family violence provisions may apply.
Common mistakes with partner visa stepchildren
The most common mistakes with partner visa stepchildren are treating a child of a former partner as a stepchild without a court order, relying on the step-parent's consent instead of the other biological parent's, failing to declare non-migrating stepchildren, assuming an adult stepchild is dependent because they live at home, and leaving custody questions until after lodgement.
Treating care as a legal relationship
Caring for a child, however long and however devotedly, does not make the child a step-child under the second limb. A parenting order, guardianship or custody is required for a child of a former partner.
Overlooking the other parent
The other biological parent's rights do not disappear because that parent is absent, overseas or uninvolved. Unless a court order or the law of the home country deals with those rights, consent is needed.
Incomplete declarations
Non-migrating partner visa stepchildren who are members of the family unit must be declared and may need health checks. Omitting them can cause problems for the current application and the child's future.
Assuming adult dependency
Living at home is not the test. Financial reliance for basic needs over a substantial period is.
Leaving custody issues too late
Court orders and consents in another country can take months. Starting after lodgement risks a refusal or a long delay. Where a refusal has already occurred, the guides to partner visa refusals, partner visa refused appeal options and what to expect at an ART review explain the next steps. The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024, and review deadlines are short and strictly applied. A visa appeal lawyer can assess whether a refusal involving partner visa stepchildren is worth taking further.
How My Migration Lawyers helps with partner visa stepchildren
My Migration Lawyers helps families with partner visa stepchildren by classifying every child correctly under the regulations before anything is lodged, identifying who holds legal rights over each child, and building the evidence chain that proves parentage, the step-child link, custody and dependency. The firm deals with complex blended family cases, acts in many partner visa matters involving stepchildren and children of former partners, and is well placed to handle the custody and consent issues that these cases raise.
What the firm does in partner visa stepchildren matters
First, the firm maps the whole family: every child of the applicant, every child of the sponsor, every child of a former partner, and where each child lives. Second, it classifies each child as a child, a step-child under the first or second limb, a dependent child, a member of the family unit, or none of these, and explains what follows for that child. Third, it identifies every person who can lawfully determine where each migrating child lives, and advises whether consent, a court order or the home country's law will satisfy PIC 4015. Fourth, it reviews the sponsor's position, including the police check requirements that apply when a child under 18 is included. Fifth, it checks that the application, Form 80 and the sponsorship declare the family consistently. Sixth, it prepares the documents for lodgement and keeps the children's position under review through to the permanent stage.
When families come to the firm
Families come to My Migration Lawyers at different points. Some want advice before deciding whether a child should be included at all. Some have already lodged and want the file reviewed, as explained in the guide to hiring an immigration lawyer after lodging your own application. Some want a second opinion from an immigration lawyer. Others come after a refusal, including families considering a partner visa after a visa refusal or a broader visa refusal. Where the firm is appointed, it lodges Form 956 so that the Department corresponds with the firm.
Who handles your matter
Partner visa work at My Migration Lawyers is led by Weiwei Zhang, Principal Lawyer. The firm is an Australian immigration law firm, and more about its approach is on the About My Migration Lawyers page and the partner visa lawyers page. The firm acts for families across Australia, including in Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta, with consultations by video. Families comparing firms can read the guide to choosing the best partner visa lawyer in Australia and the guide to what an immigration lawyer does.
Book a consultation about partner visa stepchildren
If your family includes stepchildren, children of a former partner, or a child whose other parent has not consented, the right time to get advice is before lodgement. Book a Consultation with My Migration Lawyers to have each child's position reviewed. You can also call 1300 040 300.
Frequently Asked Questions
Can partner visa stepchildren be included in the application?
Yes. Partner visa stepchildren can be included if they are a dependent child of the applicant under regulation 1.03 of the Migration Regulations 1994. That definition covers a child or step-child who is under 18, or who is 18 or over and dependent, and who is not married, engaged or in a de facto relationship. The sponsorship must also include the child, and a child under 18 must satisfy the custody and best interests criteria.
What is a stepchild for partner visa purposes?
A step-child is a child of the person's current spouse or de facto partner who is not the person's own child. It also includes a child of a former spouse or former de facto partner, but only if the child is under 18 and the person has a parenting order, guardianship or custody for that child. Caring for a child without a legal order does not create a step-child relationship.
Are my own children from a previous relationship stepchildren on my partner visa?
No. Your own children are your children, not your stepchildren. They become your sponsor's stepchildren, but they are included in your partner visa application as your dependent children. Your sponsor does not need to adopt them. What usually needs attention is the consent or legal position of the children's other biological parent, because the custody criterion applies to every child under 18 in the application.
Can the child of my former partner be included as a stepchild?
Only in limited cases. The child of a former spouse or former de facto partner counts as your step-child only if the child is under 18 and you hold a parenting order under the Family Law Act 1975, or guardianship or custody under Australian or foreign law. Without one of those, the child cannot be included as your dependent child, however long you have cared for them.
Can my sponsor consent instead of my child's other parent?
No. A step-parent's consent does not replace the consent of a biological parent who still has the legal right to decide where the child lives. Unless a court order, formal relinquishment or the law of the home country deals with that parent's rights, their consent is needed. This is one of the most common errors in partner visa stepchildren cases and can lead to refusal of the whole application.
What happens if one child fails the custody criterion?
If a child under 18 in the application does not satisfy PIC 4015 or PIC 4016, the primary applicant cannot meet the primary criteria, and every applicant in the application must be refused. The Department calls this the "one fails, all fail" approach. For this reason, custody and consent questions about partner visa stepchildren should be resolved before lodgement, not after.
Can an adult stepchild be included in a partner visa?
Yes, but only if the adult stepchild is dependent under regulation 1.05A and is not married, engaged or in a de facto relationship. Dependency means substantial financial reliance for food, clothing and shelter over a substantial period, greater than reliance on anyone else, or reliance because of incapacity for work. Living in the family home or being emotionally close is not enough on its own.
Do non-migrating stepchildren need to be declared?
Yes. A stepchild who is a member of the family unit under regulation 1.12 must be declared even if they are not migrating. For the Subclass 820 visa, subclause 820.224(1A) requires non-applicant members of the family unit to meet certain public interest criteria, including health assessment unless the delegate finds it unreasonable to require it. Omitting a child can cause problems now and later.
Does my sponsor need police checks if partner visa stepchildren are included?
Yes, the Department may require them. Where a partner visa application includes an applicant under 18, regulation 1.20KB allows the Department to ask the sponsor for Australian and overseas police checks. A conviction or unresolved charge for a registrable offence can lead to refusal of the sponsorship for all applicants, subject to limited discretion. Failing to provide a requested check within a reasonable time can also lead to refusal.
What documents are needed for partner visa stepchildren?
The documents must prove each link: the child's full birth certificate and passport, evidence of the relationship that makes the child a stepchild, any parenting, guardianship or custody orders, consent from each person who can lawfully decide where the child lives or a court order instead, and dependency evidence for children aged 18 or over. Documents not in English must be translated.
Is the best interests of the child assessed separately from consent?
Yes. The Department's policy says PIC 4016 and PIC 4018, the best interests criteria, must be assessed separately from the custody criteria and cannot be assumed to be met because consent was given. In most cases the assessment is based on the documents provided. It becomes detailed where there is evidence of risk, such as concerns disclosed by the sponsor's police checks.
Does the sponsor's child count as my stepchild?
Yes. While your relationship continues, a child of your sponsor is your step-child under the first limb of the definition. In most cases that child is an Australian citizen or permanent resident and does not need a visa. If the child is not, the definitions may allow the child to be considered as your dependent child, but the best pathway should be assessed before lodging any application.
Do stepchildren count for the long-term partner relationship concession?
No. The long-term partner relationship concession uses a period of not less than two years where there is a dependent child of both the applicant and the sponsor, and the Department's policy expressly excludes a step-child. Otherwise the period is not less than three years. Partner visa stepchildren therefore do not shorten the required relationship period. Only a child of both partners does.
What happens to partner visa stepchildren if the relationship ends?
It depends on whose child they are. Your own children remain your children. A child of your sponsor stops being your step-child under the first limb once the relationship ends, unless a court order brings the child within the second limb. In some cases, subparagraph 801.221(6)(c)(ii) allows the permanent visa where both partners have custody, access or maintenance links to the same child. Advice should be sought quickly.
Are the stepchild rules different for onshore and offshore partner visas?
No. The definitions of step-child, dependent child and member of the family unit are the same for the Subclass 820, 801, 309 and 100 visas. The practical issues differ. Onshore, a child without a substantive visa may need to meet the Schedule 3 criteria. Offshore, the child usually applies from the home country, and that country's law often governs consent and custody.
When should we get advice about partner visa stepchildren?
The best time is before lodgement. Court orders and consents in another country can take months, and an unresolved custody issue for one child can lead to refusal for the whole family. Advice before lodgement allows each child to be classified correctly, the right consents to be obtained, and the sponsor's police check position to be reviewed in good time.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
