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Child custody for an Australian Visa: Do I Need a Form 1229?

By 27 October, 2022October 3rd, 202320 Comments5 min read

Form 1229

It is essential that anyone with parental responsibility for a child give permission for them to be granted an Australian visa. This includes both temporary and permanent visas. If you intend to travel to Australia with a child under 18 years of age, you might need to complete a Form 1229 if the child has:

  • a non-accompanying parent(s); or
  • other person(s) with parental responsibility for them.

This article deals with circumstances where a Form 1229 is required, and why.

What is public interest criterion 4017?

Most visas are subject to public interest criterion (PIC) 4017 (commonly referred to as the ‘custody criteria’). PIC 4017 exists to ensure that a child cannot be granted a visa where there are unresolved custody or residence issues.

One of the following must be met to satisfy PIC 4017:

  1. The child’s home country permits them to travel to Australia; or
  2. Each person who has legal rights to determine where the child is to live consents to the grant of the visa; or
  3. The grant of the visa would be consistent with any relevant Australian child order in force.

Who does PIC 4017 apply to?

PIC 4017 refers to persons “under the age of 18”. This means that all applicants under the age of 18 need to satisfy this requirement. This includes any child who is not the dependent child of the main applicant.

PIC 4017 therefore applies to any person who is:

  • under 18;
  • included in the visa application; and
  • eligible to be included as a ‘member of the family unit’.

Parental responsibility (custody)

Where a child is travelling with both parents, satisfying PIC 4017 is a straightforward process. In most cases, a full birth certificate showing the names of both migrating parents will usually be sufficient.

Where a child is travelling with one parent who has full parental responsibility, satisfying PIC 4017 may be achieved by providing the relevant court or custody documentation that demonstrates this.

Where another parent (who is not included in the application or not accompanying the child) has some parental responsibility, then their consent for the grant of the visa to the child is likely to be required.

Providing consent

To satisfy PIC 4017, the main question to be addressed is whether the adult supporting the application (e.g., the visa sponsor or family head) has the sole right to decide where the child can live.

There are a number of reasons why a non-accompanying adult will have parental responsibility for a child. For example, some common circumstances this might occur include where:

  • only the child and one parent are visa applicants;
  • the child is applying with one biological parent and a step-parent; or
  • the child’s grandparent has a residence order.

In such cases, consent must be provided by any non-accompanying person with responsibility for the child.

The easiest way to provide consent is by completing a Form 1229. Alternatively, a Statutory Declaration from each person with parental responsibility will be suitable.

Completing a Form 1229

The Form 1229 is a relatively straightforward document. It requires details regarding the:

  • purpose of the child’s visit to Australia;
  • child’s identity document/s; and
  • non-accompanying parent/person’s details.

You should also attach the following to the Form 1229:

  • a certified copy of the child’s/children’s birth certificate(s);
  • a certified identity document of the non-accompanying parent/person (e.g., passport, birth certificate, or national identity card).

The Form 1229 and the accompanying evidence should be uploaded to the relevant visa application via ImmiAccount.

Children With a Deceased Parent

As mentioned above, a birth certificate is usually sufficient to demonstrate a parent-child relationship.

However, where the child’s other parent is deceased, you will need to provide a copy of their death certificate to confirm you have sole responsibility for the child.

I Am Travelling to Australia on a Holiday: Do I Need to Provide a Form 1229?

Most temporary and permanent Australian visas must meet PIC 4017. This includes applicants for a Visitor (subclass 600) visa. As such, each person who has parental responsibility for a child will need to provide consent for a Visitor visa.

Do you require further assistance?

If you need assistance including your child in your visa application or have any other immigration related queries, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.
Emily Young

Author Emily Young

Emily completed her Bachelor of Laws (Honours) from Bond University in 2019, and is busy building her legal knowledge across the entire Australian immigration law framework. She's passionate about global mobility and social issues, having previously worked on matters regarding international parental child abduction, volunteered for Camp Quality, and even set foot in North Korea!

More posts by Emily Young

Join the discussion 20 Comments

  • Sharmila says:

    Hi ,
    I am in Australia student visa . Both my husband and I have visa of Australia. I have applied visa of our 3 yrs old daughter . Visa is yet to come. My husband has gone to our home country to bring here Australia if visa granted. Should we both fill 1229 form ?

    And under Child Custody Details , do I need to click yes in is this child in the primary applicant’s care and legal custody ?

    • admin says:

      Hi Sharmila,
      If both you and your husband were granted visas together then usually you would not need a Form 1229 (your marriage certificates and the child’s birth certificate shoudl be sufficient).
      There’s no harm in you adding a Form 1229 in any case.
      Good luck,
      Hannan Tew

    • Kath says:

      Hi.

      I am starting the visa process with my 14year old daughter. She had not had any contact with her father in Iver 10 years. We are not even sure where he is. Do I need to still complete the 1229 for her to be accepted for residency

      • admin says:

        Hi Kath,
        You may require a Statutory Declaration explaining the circumstances, along with any custody documentation.
        Feel free to contact us at [email protected] if you’d like to discuss further.
        Kind regards,
        Hannan Tew

  • Olubunmi Adebiyi says:

    Hi admin,
    I would like to ask that at what stage of the Visa application processing would the DHA request for the form 1229 for applicants under 18 years.
    Thanks.

    • admin says:

      Hi Olubunmi,
      If you believe it’s required, you should provide it at lodgement to avoid delays.
      Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

  • Jo-Ann says:

    Hello

    I have completed form 1229 as the parent with parental responsibility of daughter aged 16 years. I am the only parent on the birth certificate, myself and the biological father were never married, evidence requested now to prove sole custody but I thought that the birth certificate showing me as having parental responsibility would be all that was required as a single parent travelling with daughter and step family members including current partner, I’m a little confused as to how best to prove sole custody as the birth certificate showing me as named parent has already been provided , any advice much appreciated?

    • admin says:

      Hi Joann, Department policy about this is that a birth certificate is not necessarily initself sufficient: “The mere fact (or claim) that a non-custodial parent has had no contact with the child for a long time (or cannot be located) does not negate that person’s rights with regard to the child and officers cannot assume that this person consents to the grant of a visa. In such cases, PIC 4017 cannot be met and the the family head will need to: obtain a court order permitting removal of the child, provide other evidence that the laws of the child’s home country permits removal of the child or provide an Australian child order.” Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

    • HA HYUN NOH says:

      Hi, I had been a single mother in S. Korea. I married my current husband who is an Australian citizen this year and have applied for visas for my 7 year old son and I. I have sole custodial and parental rights over my son and have been able to lawfully travel around without his birthfather’s consent but the Australian government has requested the form 1229 after our visa application. I have sent the legal documents to say I have both the custodial and parental rights. I wonder if this will be accepted or whether I will still need the form 1229 and if there is any other way I can stay here with my son because my exhusband is not someone who will be willing to help me in any way and has not even been paying the monthly fees he is lawfully required to pay me for my sole parentage.
      Please help me with advice.
      Thank uou so much.

      • admin says:

        Hi Jo-Ann,
        A Form 1229 is not the only document that can show custody, so you might consider other legal documentation to pass the relevant public interest criterion (e.g. a court order).
        Feel free to contact us at [email protected] to discuss this further.
        Kind regards,
        Hannan Tew

  • Doting Father says:

    My ex-wife married an Australian and was issued a subclass 600 visa in October 2022. Our daughter’s application was rejected because I have joint custody and refused to give consent. Following this, my ex-wife applied for sole custody and the Malaysian court refused to award her sole custody, but decided to permit my daughter to move to Australia with her mother. I still have joint custody, but they are, apparently, reapplying using the approval from the Malaysian court. I have made two reports to Australian Border force, one before we went to court and again to update them on the court’s decision. Last week my daughter went to give her biometrics. Does this mean her visa is being approved? Or is there still hope that it will be declined? Thank you for reading and any advice is appreciated.

    • admin says:

      Hi there,
      PIC 4017 can be satisfied as long as the law of the applicant’s home country permits the removal of the applicant (even if joint custody exists).
      At first glance, it seems like your daughter will be able to obtain her Australian visa, but feel free to reach out at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

  • Daljit Sidhu says:

    I withdrew my wife’s 309 sponsorship due to my mother who was always instigating me & have been married for 17years.
    We are now a happy family when I decided to separate my wife from our own family life.
    My son is an Australian citizen & I am. Permanent resident my son is going to an international school in Malaysia and lives with my wife as I travel for work at times overseas.
    We have decided to relocate to Melbourne & I have made arrangements for him to enrol to a local council and I also have a resident property.
    Is it possible for my wife to get a visitors visa to accompany as her 309 was refused as I withdrew the sponsor at that time.

    Thank you

    • admin says:

      Hi Daljit,
      Your wife’s 309 visa refusal may make it challenging to address GTI criteria for the Visitor visa, so you would want to prepare a detailed statutory declaration explaining the separation. She’ll also now need to clearly demonstrate ties to Malaysia.
      Feel free to contact us at [email protected] to discuss further.
      Kind regards,
      Hannan Tew

  • Laavanya says:

    I am an international from Sri Lanka living in Queensland, AU. I have recently applied for a new student visa as the old one is going to expire in March 2024. I included my child as a dependent. I have been living with my child and separately from my partner since 2022 due to domestic violence. A domestic violence protection order has been placed by the Brisbane Magistrate Court which is valid till 2027. I have had no contact with my child’s father after the incident and he went away from us and lives in Sri Lanka. He never took any action from his end to share the parental responsibility after the court order was placed. All responsibilities were on me as my child was 3 years old at that time. Since then, I have been looking after him, and demanding nothing from my child’s father. Also, have no further court order stating the child’s custody. I stated all these in a statement of letter and applied along with the protection order. However, now, I am required to give the consent of the child’s father for issuing a visa to my child. As long as there is no response from the child’s father, what may be the alternative to show evidence that my child is living with me and his father never cared about his child and just ran away to secure himself from legal penalties? I feel this may impact future visa applications as well. Therefore, I would like to get advice from you.

    • admin says:

      Hi Laavanya,
      If you are unable to obtain consent from your ex-husband, you may need to obtain a court order appointing sole responsibility for your child. We recommend speaking to a family lawyer about the best way to do this. Feel free to contact us at [email protected] to discuss further.
      Kind regards,
      Hannan Tew

  • David says:

    Hi admin,
    I am assisting my brother who is an Australian citizen living in China with his daughter’s application for citizenship. Both parents are also moving to Australia but the daughter may arrive before the parents for a period of time, would a form 1229 be required?

  • Tarun says:

    Hi there,

    I am applying a visitor visa for my sister, and brother-in-law and their children under 18, and they are asking for form 1229, my question do any of the parent need to sign the form or just children information is enough because they all travelling together and which document we need to attach along with it ?

    • admin says:

      Hi Tarun,
      If the family are travelling together usually the Form 1229 would not be requested, but if it has, both parents should sign the documents.
      Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

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