Including a child from a previous relationship in a visa: the other parent’s consent, court orders, the parent who refuses or cannot be found, and dependency over 18

MARN 1576536

The criterion the child must meet

Every visa that can be granted to a child under 18 carries public interest criteria requiring the Department to be satisfied that the law of the child's home country permits the removal of the child, and that each person who can lawfully determine where the child is to live consents to the grant, or that the grant is consistent with an order of a court in Australia or elsewhere, or that the child's home country's law permits the grant to be made without that consent. The criteria exist to prevent a parent using an Australian visa to remove a child from the other parent, and they are applied to every child in every family application, partner, skilled, employer-sponsored, parent, whether the child is included at lodgement or added. The child must also meet the health and character criteria and the dependency definition that lets them be included. The family unit guide sets out who can be included.

Who has the right to decide where the child lives

The question is answered by the law of the child's home country and by any court orders, and it is usually both parents. A parent named on the birth certificate, married to the other parent at the birth, or recognised under the home country's law as holding parental responsibility, has the right until a court removes it, whether or not they have been involved in the child's life, whether or not they pay support, and whether or not the applicant regards them as a parent. In some countries the law gives sole responsibility to the mother of a child born outside marriage unless the father has taken steps; in others both parents hold it from the birth; in some a guardian or a grandparent holds it by custom or by order. The applicant establishes the position under the home country's law, with a lawyer there where it is unclear, before deciding whose consent is needed, because consent from the wrong person is no consent.

How consent is given

The other parent consents on the Department's form for consent to the grant of a visa to a child under 18, or by a statutory declaration in Australia or a sworn affidavit or notarised declaration abroad, stating that they are the child's parent, that they consent to the child being granted an Australian visa and migrating to live in Australia with the applicant, and giving their contact details; with a certified copy of the parent's passport or national identity document, so that the signature can be matched. The Department may telephone or write to the consenting parent to confirm, and a parent who cannot be reached, or who denies the consent, ends the application for the child. The consent is signed by the parent and by no one else; a consent form completed by the applicant on the other parent's behalf, or signed with the applicant's own hand, is a false document and brings PIC 4020 to the whole application. Where the consent is in another language it is translated, and the translations guide covers the requirements.

A court order instead

Where consent is not obtained, the criterion is met by an order of a court that is consistent with the grant: a parenting or custody order from the child's home country, or from an Australian family court where it has jurisdiction, that gives the applicant the right to decide where the child lives, or that permits the child to relocate to Australia with the applicant, or that gives the applicant sole parental responsibility. An order that gives the applicant custody but is silent on relocation is examined for whether it permits removal, and in many countries it does not, because relocation abroad needs a specific order. The order is lodged with a certified translation, and the Department reads it for whether it covers the child, the applicant and the relocation. Obtaining it is a family law matter in the country concerned and takes the time that country's courts take.

The parent who refuses

A parent who holds the right and refuses consent cannot be overridden by the Department; the applicant's choices are to persuade, to seek a court order, or to proceed without the child. Persuasion is the applicant's affair and often turns on contact arrangements, travel to visit, and the child's own wishes, which a court will also consider. A court order is sought in the home country, or in Australia where the child is here, under the law that governs relocation, which in most countries weighs the child's best interests and the other parent's relationship with the child, and which can refuse. An applicant who proceeds without the child includes the child as a non-migrating family member, so that the child is assessed on health and character now and can be added later by a subsequent entrant application if an order or a consent is obtained; a child left out entirely has to meet the family unit definition afresh when added. The migration application does not wait for the family court unless the applicant chooses to make it wait.

The parent who has died, cannot be found, or was never a parent in law

• Deceased. The death certificate, translated, and no consent is needed from that parent; where another person took on responsibility after the death, a grandparent by order or custom, their position is examined.
• Cannot be found. The Department requires evidence of genuine efforts to locate the parent: enquiries of their family, their last employer, the authorities, a notice in the press where the country uses them, a lawyer's letter; statements from the applicant and others about the parent's disappearance and the period; and evidence of what the home country's law provides where a parent is absent, which often requires a court declaration or an order giving the applicant sole responsibility. The Department does not accept the applicant's word that the parent is gone.
• Never a parent in law. Where the home country's law gives parental responsibility to the mother alone for a child born outside marriage, and the father took none of the steps the law requires, the birth certificate showing no father, or the father's non-registration, and a statement of the law, usually from a lawyer in that country, establish that the father has no right to decide and no consent is needed. The Department examines these cases for whether the father in fact acquired rights by later acknowledgment or involvement.
• In prison, or incapacitated. A parent who holds the right still consents, or a court order replaces the consent, and incapacity is shown by medical evidence and, usually, a guardianship order.

The step-parent sponsor and the child's own criteria

In a partner visa the child is included as the applicant's dependent child and is not sponsored by the Australian partner as a step-parent; the sponsor's sponsorship covers the applicant and the family unit, and the sponsor signs the sponsorship form for the child as a family member, undertakes the same support, and is subject to the character requirements for sponsors, which include a police check and the family safety rules that apply where children are sponsored. The child meets health, with the examination and any further tests, and character, with police certificates from the age of 16 for countries lived in; and the child's inclusion carries a charge. A child who fails the health requirement fails it for the family unless the visa has a waiver, as the child health guide sets out.

Turning 18 or 23 during processing

A child included under 18 who turns 18 before the decision remains a member of the family unit if, at decision, they are dependent on the applicant: aged under 23, financially dependent, not in a spousal or de facto relationship of their own, and usually in full-time study, with the evidence of the dependency, the enrolment, the financial support, the shared household. A child who turns 23 before decision remains included only if dependent because of a physical or cognitive incapacity. The consent criterion ceases to apply at 18, because an adult decides for themselves, but the dependency criterion begins, and the family gathers its evidence before the birthday. A child who is not dependent at decision is removed from the application and applies in their own right if they can. The family unit guide sets out the dependency rules.

Adding a child later

A child not included at lodgement can be added before decision as a member of the family unit, with the charge and the documents, including the consent or the order; a child born after lodgement is taken to be included in most subclasses on notification of the birth. A child added after the applicant's visa is granted comes by a subsequent entrant application for the same subclass, or, once the applicant is a permanent resident or citizen, by a child visa, each with the consent criterion applied afresh and the child's health and character examined. A child left out of a permanent application as a non-migrating member and later added by a child visa is the commonest route for a child whose other parent would not consent at the time and did later. The subsequent entrant guide and the child visa guide cover the later routes.

The family law advice alongside

Whose consent is needed, what an order must say, whether the home country permits relocation, and what the other parent's rights are after the child migrates are questions of the family law of the child's country and sometimes of Australia, and a migration adviser answers them only as far as the Department's criterion requires. A parent planning to bring a child from a previous relationship takes family law advice in the child's country at the start, obtains the consent or the order that the criterion needs, and lodges the migration application with it, rather than lodging and discovering the problem at decision. Australia is a party to the Hague Convention on child abduction, and a child brought to Australia in breach of the other parent's rights can be ordered returned by an Australian court whatever visa they hold; the migration criterion exists so that it does not come to that.

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General information only, current at October 2026; not advice on your own case. Public Interest Criteria 4015, 4016, 4017 and 4018 in Schedule 4 to the Migration Regulations 1994, the definitions of member of the family unit and dependent child in regulations 1.03 and 1.12, the partner sponsorship provisions, and the Department’s consent form for the grant of a visa to a child under 18, as at the date above; whose consent is required is a matter of the law of the child’s home country and of any court orders, and family law advice in that country is taken alongside. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.