What If the Other Parent Refuses Consent for My Child to Migrate?

Do I need the other parent's consent for my child's partner visa?

Consent from the other parent is needed for a child's partner visa where that parent has a legal right to decide where the child lives, unless another limb of PIC 4017 is satisfied. The Department checks whether anyone else holds parental responsibility under the law of the child's home country or under an Australian court order. Our article on a partner visa with a child who has a disability shows how closely the Department assesses child applicants more generally.

What can I do if the other parent will not sign the consent form?

A parent whose former partner will not sign the consent form can usually only overcome the problem with a court order or by showing that the law of the child's home country allows the move without that consent. In Australia, the family law courts can make parenting orders, including orders about where a child lives. In the child's home country, a local court may be able to make an equivalent order. Legal advice in the relevant country is often needed, and the order should clearly deal with the child's relocation to Australia.

Can the child be removed from the partner visa application?

A child can be removed from a partner visa application by withdrawing the child's part of the application, which lets the parent's own application continue without the consent problem. This is a serious decision, because it affects how and when the child can follow. A child who is not included at the start may be able to apply later, for example for a Subclass 445 visa once the parent holds a temporary partner visa, but the consent requirement will still apply then. Our article on partner visa change of circumstances explains how changes are notified.

Does the Department consider the child's best interests?

The Department considers the child's best interests under PIC 4018, which requires it to be satisfied that there is no compelling reason to believe the grant would not be in the child's best interests. This is a separate test from consent. Even where consent or a court order exists, the Department may look at the child's circumstances, including family ties and care arrangements, before granting the visa.

What if the consent problem has already led to a refusal?

If a consent problem has already led to a refusal, the parent may be able to seek review at the Administrative Review Tribunal and provide a court order or new evidence there. The time limit for review is short and strictly applied. Our page on partner visa refusals and our article on partner visa refused appeal options explain the paths available.

How does My Migration Lawyers help when the other parent refuses consent?

My Migration Lawyers identifies which limb of PIC 4017 the family can realistically meet, and plans the partner visa around that answer rather than lodging and hoping the consent appears later. The firm advises on timing, on whether to include the child now or later, and on the evidence the Department will need from a court order. Parents can speak with our partner visa lawyers about the order of steps, and offshore families can read our page on the Subclass 309 visa.