There are some things to take note where you would like to add your child/children as dependent(s) to your prospective marriage visa, onshore partner visa or offshore partner visa application.
Child of your relationship - under 18
Where your child is a child of the relationship, they can usually be added to the application with ease if they are under the age of 18. A birth certificate showing both your and your Australian partner's name is usually sufficient. If your child was born outside of Australia, it is recommended that you have the copy of your child's birth certificate certified by a Justice of the Peace (available in countries such as Australia and New Zealand) or a Notary Public (available in every country).
Child of your relationship - above 18
If they are above 18 years old, it would become necessary to prove dependency on you as the parent. Financial dependency is one issue that the Department will look at. If your child who is above 18 years old is studying full-time within 6 months of completing high school, it can be looked upon favourably as evidence. They also should not be in a de facto or spousal relationship.
As long as your child is fully dependent on you by the time your subclass 820 visa application is decided, their visa is capable of being granted.
Child of your relationship - above 23?
There is a common conception even amongst immigration practitioners and departmental case delegates that the dependent must be under 23 years old at the time of decision for their visa to be granted unless they have a disability depriving them of the ability to support themselves. This is not necessarily the case upon closer reading of the relevant law in the Migration Regulations 1994 (cth).
There are two sets of requirements under the relevant law (italised below) that must be satisfied by the dependent child during "time of application" and "time of decision".
"Time of application" requirement means a requirement that must be met at the time of submitting the visa, which is a time you can more or less control. For instance, you can choose to submit your visa on 01 Jan 2025 or 02 Feb 2025. Meanwhile, 'time of decision" requirement means that the requirement must be met at the time when a case officer is ready to make a decision on the case. You can refer to the department's processing time guide which might say the average processing time is between 5 to 9 months for 90% of the applications, but it cannot tell you if your visa will be decided on 05 Sep 2025 or 25 Dec 2026! The time in which this latter scenario happens is out of our control.
The "time of application" requirements to be satisfied by the dependent child are:
820.311 The applicant is:
(a) either:
(i) a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or
[...] (we have left out the irrelevant parts with this symbol)
Meanwhile, we follow the definition of "dependent child" mentioned in the above subsection to Reg 1.03, which states:
"dependent child" , of a person, means the child or step - child of the person (other than a child or step - child who is engaged to be married or has a spouse or de facto partner), being a child or step - child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child's or step - child's bodily or mental functions.
The connector used is "or", instead of "and", which means the core issue for a dependent child applicant over the age of 18 is proving their how they are "dependent" (which is defined in Reg 1.05A, mentioned below), not whether the child over the age of 18 has mental or physical disability.
The "time of decision" requirements to be satisfied by the dependent child are:
820.32 In the case of an applicant referred to in clause 820.311, the applicant:
(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria); or
[...]
Meanwhile, "dependent" means the following under the law (italised below):
Reg 1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
[...]
Again, here the connector used is "or", instead of "and", which means that the requirement of proving that mental or physical disability is separate to the other requirements above in subsections (a)(i) and (a)(ii). Nowhere in the legislative provisions specifically refers to the number "23". Proving substantial dependence is key and the age of the dependent applicant is not the definitive criterion on whether they can be included as a partner visa dependent.
Several recent (2023) cases at the administrative appeals tribunal and federal court level also affirm this interpretation. Whilst administrative appeals case law does not necessarily dictate the decision of departmental case officers, they provide a good guide to the Departmental case officer on how the laws are interpreted by an independent statutory body within the executive branch of government.
Despite this development in the interpretation of the law, if you choose to include dependent adult children who will likely reach the age of 23 by the time of visa decision (based on standard visa processing times) as a part of your application, the writer still considers it a risky endeavour and would caution against making such a decision lightly.
If you have a child who is over 23 (or about to be 23) whom you wish to add to your partner visa application, it is important that you seek immigration advice to ensure all of criteria are properly met, as it can be a complex issue to navigate.
Non-biological Child - under 18
Where your child who is under the age of 18 is not a biological child of the sponsor (your Australian partner) or yourself, there may be further complexities. It is important that you are able to show evidence of your custody of your child. If custody documents are not available, you will typically be required to provide a Form 1229 signed by both yourself and the other biological parent of your child, confirming that the child is allowed to leave his or her home country.
Adding a child to your application after lodgement
If you are looking to add your child to your partner visa application after the application has been lodged, you will be required to complete a Form 1436 and providing additional documentation such as identity documents and documents to prove your child's relationship to you.
Need help with deciding on which one is more suited to your circumstances? Have some burning questions about the 482 visa or 494 visa that are still unanswered? The content on this page does not constitute legal or immigration advice. Australian immigration doesn't have to be complex and we can help with your unique circumstances. To seek legal advice or information that is specific to your situation, please contact us.
