Can a Lawyer Help With a Partner Visa When the Other Parent Won't Consent to the Child Migrating?

Why does the other parent's refusal matter for a partner visa?

The other parent's refusal matters for a partner visa because the regulations do not allow a child under 18 to be granted the visa unless one of the custody criteria is met, and consent from each person with the right to decide where the child lives is the most common way to meet them. Without consent, another route must be proven. The rule protects the other parent's rights, so the Department applies it strictly. Our partner visa lawyers look at the custody position as soon as the family's plans are known.

What can replace the other parent's consent?

A court order or the law of the child's home country can replace the other parent's consent. An Australian child order permitting the child to live with the applicant in Australia satisfies the criteria. An order from a court in the child's home country giving the applicant sole decision-making about where the child lives may also be relevant. In some countries the law itself permits a custodial parent to take the child abroad, which must be shown with reliable legal evidence. Our partner visa document checklist shows how these documents are presented.

What does a lawyer do when the other parent will not consent?

A lawyer acting where the other parent will not consent first reviews the existing orders, the child's living arrangements and the law of the child's home country, then advises which route is realistic and what evidence each requires. The lawyer also explains to the family lawyer handling any custody case exactly what the migration criteria require, so the order obtained actually fits the visa. Where the issue is delaying the whole family, the lawyer advises on timing, including whether to lodge first and add evidence later.

Can the partner visa go ahead without the child?

The partner visa can go ahead without the child, because the applicant's eligibility does not depend on the child being included. The child may be left out of the application, or removed from it, and later apply for a separate visa once the custody issue is resolved. While the parent holds a temporary partner visa, such as the Subclass 820 visa, the child may later follow through a separate application such as the Subclass 445. A child who is not migrating may still need a health examination for the permanent stage.

What risks arise if the custody problem is ignored?

The risks that arise if the custody problem is ignored include refusal of the child's visa, delay to the whole application while the Department waits, and questions about credibility if the forms give an inaccurate account of custody. Giving false or misleading information can engage the integrity criterion, as explained in our article on partner visa PIC 4020. If the family's application is refused, our page on partner visa refusals explains the review options, which have short and strictly applied deadlines.

How does My Migration Lawyers handle a refusal of consent by the other parent?

My Migration Lawyers handles a refusal of consent by the other parent by treating it as a separate legal problem inside the partner visa, with its own plan and its own evidence. The firm maps the custody routes available for that child, explains in writing what the Department will need, and keeps the relationship case moving so the applicant is not held back while a court process runs. The firm is led by Principal Lawyer Weiwei Zhang and works with families across Australia and overseas by video and email.