Do I Need the Other Parent's Consent for My Child to Migrate?

Whose consent is needed for a child to migrate on a partner visa?

The consent needed for a child to migrate on a partner visa is the consent of each person who can lawfully determine where the child lives, other than the applicant. This is usually the child's other parent, but can include a guardian or another person given that right by a court. A parent who has no contact with the child may still hold that right unless a court order says otherwise. Our partner visa lawyers check who holds parental responsibility before the forms are signed.

How is the other parent's consent given?

The other parent's consent is given by completing and signing Form 1229 and providing a certified copy of an identity document that shows the parent's signature. The form must be completed accurately, with the child's details matching the passport and birth certificate. Consent given in a letter without the form may not be enough. The same consent is needed whether the family applies onshore or for the offshore Subclass 309 visa. Our partner visa document checklist lists the consent documents with the other evidence for children.

When is the other parent's consent not needed?

The other parent's consent is not needed where another custody criterion is met. That can be a court order giving the applicant sole responsibility for where the child lives, an Australian child order consistent with the child migrating, or the law of the child's home country permitting removal. Consent is also not needed where the other parent has died, which is shown by a death certificate, or for a child aged 18 or over.

Does consent matter if the child is already in Australia?

Consent still matters if the child is already in Australia and is included in a Subclass 820 application, because the custody criteria apply to children under 18 regardless of location. A child already living in Australia with the applicant may have a stronger factual basis for an Australian child order if consent is refused. Our page on the Subclass 820 visa explains the onshore application for families.

What happens if the other parent refuses consent?

If the other parent refuses consent, the child cannot be granted the partner visa unless another custody criterion is met. The family may seek a court order, leave the child out of the application, or plan for the child to apply later. The applicant's own partner visa is not affected by the child's position. Our article on partner visa evidence translation is relevant where court orders or consent documents are not in English.

How does My Migration Lawyers help families with consent questions?

My Migration Lawyers helps families with consent questions by identifying, from the child's documents and any orders, exactly whose consent the Department will expect, then preparing the forms so they are correct the first time. Where consent will not be given, the firm explains in writing which order or legal evidence will satisfy the criteria and how the family's partner visa can continue meanwhile. Our article on complex partner visa applications discusses custody problems alongside other issues that need early planning.