Family Law - Restricted from Immigrating to Australia?

[Gracy]

Hi,

I am a working single mother with an eight-year-old son in India. There are cases related to custody of children and divorce in the court. I have custody of the child and my spouse got only restricted visitation access.

My divorce case is pending in court. I want to emigrate to Australia with my son and I would like to know the following. Please help me by answering the below questions with proper guidance as I do not know the family law in Australia.

Also, please highlight if any other restrictions are there as well.

1. Is there any restriction to emigrate with my situation?

2. Should I get consent from my spouse to emigrate for myself and the child?

3. Is there any way to emigrate without his consent as he will not agree for the same?


Thanks.

 

[Sophea]

Hi Gracy,

The Application for Migration of a Child form states:

"If another parent or any other person can legally determine where the child can live, permission for the child to migrate to Australia must be obtained from that person. This must be in the form of either a completed form 1229 Consent to grant an Australian visa to a child under the age of 18 years or a statutory declaration. Alternatively, the parental responsibility (custody) requirement will be satisfied if the sponsoring parent is in possession of a valid court order in relation to the child which permits them to permanently remove the child from the child’s home country; or has a valid Australian child order issued by the Family Court of Australia and the grant of the visa would be consistent with that order."

Therefore if the court in india determines that your ex husband still has the legal right to determine where your child lives, then he must sign his migration application. If you can't get his consent then you could get a court order that permits the child to move.

 

[Gracy]

Thank you Sophea. I am sure my spouse would not agree. In such cases, I should have a strong reason to move to Australia and I should convince the court. For this, I should be having a job offer with one of the Australian companies to justify my stand and how it would benefit my child. Is this the only way?