children to migrate with mother and new AU husband

Go Back   Living and Working in Australia Forum With Immigration and Travel Information > Living in Australia > Visas and immigration

Visas and immigration The Australia Forum for visas, immigration and migration to Australia. Please use this section to discuss all your immigration and moving to Australia needs. Discuss visa types, time lines, submission dates, police checks and read our members' immigration success stories here.

children to migrate with mother and new AU husband


Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 02-05-2010, 09:57 AM
Active Member
 
Join Date: Feb 2010
Posts: 11
Please update your flag here .

children to migrate with mother and new AU husband

Hi,
it looks like mother's full custody of kids (which were abandoned by father in every sense more than 5 years ago and is confirmed by court and child support agency, no contact what-so-ever, he went missing!) simply sin't enough for a spouse visa for a reason that the father MIGHT POP UP at a later date and complain about the removal of kids to a country where he might not be able to travel and visit the kids, if he chooses to!

Is there anyone with any experience in this, any advice?

The father is likely to cause trouble and ask for the kids (if he finds a inexpensive way to do it) if the decision is made without his consent/without him being contacted. But he is not contactable via any known means.

Any thoughts, anybody?


  #2 (permalink)  
Old 02-05-2010, 03:32 PM
Wanderer's Avatar
Senior Member
 
Join Date: Jun 2007
Posts: 7,467
Please update your flag here .

139 likes received
Quote:
Originally Posted by eDDIe View Post
Hi,
it looks like mother's full custody of kids (which were abandoned by father in every sense more than 5 years ago and is confirmed by court and child support agency, no contact what-so-ever, he went missing!) simply sin't enough for a spouse visa for a reason that the father MIGHT POP UP at a later date and complain about the removal of kids to a country where he might not be able to travel and visit the kids, if he chooses to!

Is there anyone with any experience in this, any advice?

The father is likely to cause trouble and ask for the kids (if he finds a inexpensive way to do it) if the decision is made without his consent/without him being contacted. But he is not contactable via any known means.

Any thoughts, anybody?
Hi Ed. and welcome to the forum.

From what I've read of other people's experiences there's a couple of things that a couple will be required to do in this situation, the most important one being as you refer to the right to take the children out of a country and the normal thing is to have a letter of consent from the non custodial parent.

Without it, a legal battle ensues and despite your partner having custody and the evidence to support it, unfortunately these things can be difficult and the other ex parent not being in the picture at all nor contactable creates another issue.

I'd suggest that you approach the Embassy/Consulate Immigration office in whatever country you are and explain the situation if you have not already and ask specifically what type of documentation is required in place of consent and quite possibly it'll not be of too great a concern to Immi that the ex is nowhere to be seen for that is more a matter for the courts and their procedure in such a situation.

It could be that yóur partner is going to need a back-up court order authorising the children's travel abroad and it seems there'll be no alternative to an application to the relevant court. [ In Australia, Courthouses do have knowledgeable people about, a Clerk of Court etc., not so much for detailed legal advice but they can usually assist with direction as to what the Court procedure is for a given situation, quite often application forms etc. being available and it is possible that the situation of unknown whereabouts of a parent does come up from time to time, so if you're somewhere like the UK at a guess I'd suspect there would be some type of people at courthouses who information can be obtained from before the expense of legal people is necessary, not that you may entirely avoid that ].

Having a custodial order in place and supporting evidence from the child support agency would I suspect help expediting of the process but as I say, it's really a case of seeing what is going to be involved in getting a court order that satisfies Immigration requirements.

The second thing you may need to get organised depending on the age of the children will be a police report clearance for yourself, not usally required for a sponsoring Australian citizen or PR but when children are to be involved it is one of those things that has been deemed necessary for child welfare purposes.

Details of that should I imagine be in the partner visa info on the Immi site re dependants included and included in Booklet #1.





Last edited by Wanderer; 02-07-2010 at 02:10 AM.

  #3 (permalink)  
Old 02-07-2010, 01:28 AM
Senior Member
 
Join Date: Dec 2009
Posts: 90
Please update your flag here .

2 likes received
Hi Eddie,
I once had a similar situation referred to me by a migration lawyer and I was acting as a family lawyer. My role was to obtain an order: custody to mum, no contact with dad. In that case dad was not consenting to migration, but mum and child were already in Australia applying for PR. We didn't end up with a court order but were able to convince the Department by showing the correspondence that he was not interested in the child. Mum and child got a PR visa. Anyway, it was a while ago and the Migration Regs and policy have changed since then.
Now the policy says that you have to have/show one of the folowing::
1. court order from the country you are in permitting the removal of the child from their jurisdiction, i.e. permitting permanent migration;
2. consent of the other parent;
3. australian child order
The policy is a little bit misleading/inconsistent as it also says that for permanent visas only point 1 will be accepted.
Anyway, if you can't get an order from a local court permitting permanent migration, I would suggest coming to Au and getting an order from the Federal Magistrates Court for the sole parental responsibility, the child/ren live with mum and 'no contact' with the father. The 'no contact' is hard to achieve, in that the courts here prefer to make orders 'contact reserved' unless there are specific reasons for no contact, such as history of violence, etc.
Another option to consider is formal adoption of the children. Given that the father has abandoned the children, pays no child support and has no contact with the child/ren many countries permit adoption in such circumstances without the father's consent. The biological father is then out of the picture.
Hope it helps,
Dorota


Sponsored Links
Advertisement
 
  #4 (permalink)  
Old 02-07-2010, 02:22 AM
Wanderer's Avatar
Senior Member
 
Join Date: Jun 2007
Posts: 7,467
Please update your flag here .

139 likes received
Hi Dorota,
With all due respect to you having the legal background and experience, re
Quote:
Anyway, if you can't get an order from a local court permitting permanent migration, I would suggest coming to Au and getting an order from the Federal Magistrates Court for the sole parental responsibility, the child/ren live with mum and 'no contact' with the father. The 'no contact' is hard to achieve, in that the courts here prefer to make orders 'contact reserved' unless there are specific reasons for no contact, such as history of violence, etc.
I appreciate you put that as an alternative and the hard to achieve bit re "no contact" but would it not create other potential difficulties?, ie. what visa they come to Australia on and how immigration may view that in the first place.
And would a court here in Australia be too disposed with dealing with a situation regarding a foreign national and one just recently arrived?

I'm just thinking would it not be better for the difficulty to be addressed in the home country.





  #5 (permalink)  
Old 02-09-2010, 11:18 AM
Active Member
 
Join Date: Feb 2010
Posts: 11
Please update your flag here .

Children to stay behind

Quote:
Originally Posted by xdorota View Post
Hi Eddie,
I once had a similar situation referred to me by a migration lawyer and I was acting as a family lawyer. My role was to obtain an order: custody to mum, no contact with dad. In that case dad was not consenting to migration, but mum and child were already in Australia applying for PR. We didn't end up with a court order but were able to convince the Department by showing the correspondence that he was not interested in the child. Mum and child got a PR visa. Anyway, it was a while ago and the Migration Regs and policy have changed since then.
Now the policy says that you have to have/show one of the folowing::
1. court order from the country you are in permitting the removal of the child from their jurisdiction, i.e. permitting permanent migration;
2. consent of the other parent;
3. australian child order
The policy is a little bit misleading/inconsistent as it also says that for permanent visas only point 1 will be accepted.
Anyway, if you can't get an order from a local court permitting permanent migration, I would suggest coming to Au and getting an order from the Federal Magistrates Court for the sole parental responsibility, the child/ren live with mum and 'no contact' with the father. The 'no contact' is hard to achieve, in that the courts here prefer to make orders 'contact reserved' unless there are specific reasons for no contact, such as history of violence, etc.
Another option to consider is formal adoption of the children. Given that the father has abandoned the children, pays no child support and has no contact with the child/ren many countries permit adoption in such circumstances without the father's consent. The biological father is then out of the picture.
Hope it helps,
Dorota
Thank you all very much,
Dorota - in your opinion in this case, how likely is mother to get visa approved and kids denied/decision put on hold?

The reason I am asking this is that the chances are that we would be able to get in touch with father eventualy via extensive network of friends and get his consent (hopefuly). The other part of the reason is that my wife has guaranteed work here inAU and once we join the forces we would gain financial advantage - be able to service extensive solicitors' and courts costs, to take up a legal fight.
Can you answer to this please?

Thanks


  #6 (permalink)  
Old 02-09-2010, 02:39 PM
Senior Member
 
Join Date: Dec 2009
Posts: 90
Please update your flag here .

2 likes received
Hi Eddie,

If you get consent of the father then the visa will be granted to all the family (subject to qualifying for the visa, i.e. proving relationship, health, criminal record, etc). If there is no consent and no court order and Mum and kids apply together for migration, then the application will be refused (one fails all fail). If Mum applies alone then she will get the visa. The kids can apply later for a Child Visa, again consent of father and court order is needed for the kids to succeed.

Having said that it may be that the order that Mum already has is permitting her to decide where the kids live. There is some conceptual difference (at least within the migration law) between 'sole custody' and 'exclusive custody' (these concepts have been eroded from Au family law and migration law hasn't yet caught up with those changes, as usual).

So the existing order together with the local and Australian family law need to be looked at. If it can be interpreted as giving exclusive custody, rather than sole custody, then you could already have what you need. Also, being in Australia (say on eta) with the kids will invoke the jurisdiction of the Au Family Court (and Fed Mag Crt) over the matter and it is possible to obtain an order here. It may go very smoothly or it may develop into a battle. However, I think that a parent who abandoned the children and is not supporting them financially is unlikely to fight international court battles and you should achieve what you want.

Of course the issue is not as simple as is and can be discussed on the forum. DIAC has to deal with rights of other parent, children's best interests, Hague Convention (re: abduction of children), possibly conflicting court orders, etc. COs themselves are directed to consult their family law policy advisers rather than decide themselves. Interestingly, DIAC will not advise you on these issues in detail until AFTER you lodge your application and they find that there is a problem.


Regards,
Dorota

Edit: If you want to have your email address, please do so in conjunction with your MARA/Company details as a sig line.


Last edited by Wanderer; 02-09-2010 at 08:34 PM.

  #7 (permalink)  
Old 02-09-2010, 09:09 PM
Wanderer's Avatar
Senior Member
 
Join Date: Jun 2007
Posts: 7,467
Please update your flag here .

139 likes received
Re:
Quote:
DIAC will not advise you on these issues in detail until AFTER you lodge your application and they find that there is a problem.
I would expect that MARA Agents would be fully aware of
1. DIAC are not legal advisors
2. It likely to be totally impracticable to have full information of all issues that applicants can encounter, especially in relation to legal issues.

Nevertheless they do have a reference in the Visa Application section to Evidence of Dependency - Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100)

With that reference, you may have a very good chance of complicating the situation more than what you need to and if you've not consulted with the immigration people re that reference and the custody order you have, that may yet provide the most simplistic approach.

Adopting an ETA approach as part of a plan to apply for another visa in Australia does have risks attached and it would be interesting to see if Dorota has a view of whether in promoting that there is a risk of a MARA Agent being in breach of their licence.

I would urge you to consult with a solicitor both abroad and seek other opinions from Australian agents/solicitors before your partner seriously contemplates a move to Australia without having attained the approval for dependents.





Closed Thread

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
676 visa for my mother kisses Visas and immigration 0 08-31-2011 06:51 AM
Visa for dependent/widow mother shah83 Visas and immigration 7 06-21-2011 09:03 AM
Mother Australian citizen baby born in UK mcweedy Visas and immigration 1 11-21-2010 10:19 PM
Visa for Mother Ranjay121 Visas and immigration 6 09-06-2010 04:29 PM

LEGAL NOTICE
By using this Website, you agree to abide by our Terms and Conditions (the "Terms"). This notice does not replace our Terms, which you must read in full as they contain important information. You must not post any defamatory, unlawful or undesirable content, or any content copied from a third party, on the Website. You must not copy material from the Website except in accordance with the Terms. This Website gives users an opportunity to share information only and is not intended to contain any advice which you should rely upon. It does not replace the need to take professional or other advice. We have no liability to you or any other person in respect of any content on this Website.


All times are GMT. The time now is 08:26 AM.




Powered by vBulletin®
Copyright ©2000 - 2020, vBulletin Solutions, Inc.
SEO by vBSEO
vBulletin Security provided by vBSecurity v2.2.2 (Pro) - vBulletin Mods & Addons Copyright © 2020 DragonByte Technologies Ltd.
AustraliaForum.com