# Consent of biological father



## Kaiya (Nov 9, 2012)

Hi everyone,

I had an interview with my CO yesterday regarding my partner visa 309 application. CO informed me that I needed to get a signature of my ex in order to allow my two young children to come and live in Australia with me, otherwise they have to stay in Vietnam. I have asked about this before and MarkNortham said that "a birth certificate or other government issued certificate evidencing birth and the names of both parents (if included on the certificate) is what is important". Link here http://www.australiaforum.com/visas-immigration/18819-relationship-statement-details-former-partner.html

On the children's VN birth certificate, I am the only parent. According to law in my country, I have full and sole custody. They have been living with me in VN since they were born. The biological father name was on the certificate of consular report of birth abroad. The father has been living in USA and has nothing to do with the children. It does not make sense that that I can immigrate but without permission from the father of my children they cannot while I am the only one who have been looking after them. Who will they live with and how can they live as they are only 5 & 6 year of age.

They are a big part of my life. I can't and won't go with out them. The father had abandoned the children (no contact, no emotional support and no contribute for child maintenance) and he won't sign the form for sure. Is it right DIAC ask my case for it? I don't understand why I need a permission of someone who does not Iive in VN in order to take my children out of their own country. I am at loss, I don't know what to do. Please be advise


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## MarkNortham (Dec 19, 2012)

Hi Kaiya -

Yours is a tough case. My best advice would be to explore whatever legal options are available in your country to get a judge, etc to declare that you have sole custody and control of the children. How this is done I don't know, as each country's legal system is different. But if you can get some court or government entity to declare this in writing, that should be enough to satisfy DIAC. The problem you have now is that there are apparently 2 birth certificates - one with the father listed, another without. This presents DIAC with at least the possibility that the biological father has some legal claim to custody and control of the children. The absence of his name from the other birth certificate is not enough to confirm that he has no legal role in their lives and that you have 100% custody and control. That's why some sort of a legal document from a court of governmental authority may be the best way forward. Suggest you consider talking to a lawyer there about what possibilities may be available to have you declared as having sole custody and control of the children.

Hope this helps -

Best,

Mark Northam


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## Black Dingo (Jun 29, 2013)

Hi Kaiya,

My fiancee has a similar problem. She wasn't married to her sons father so he isn't on the Vietnamese birth certificate which gives her sole rights by default in VN as you have mentioned. She got a letter from the VN government which also confirms her sole right of custody** but now the CO has informed her that she must also have the letter from his father (CO previously confirmed that the government letter would meet the requirement), otherwise her 10 year old son will not be allowed to migrate until he is 18 years old. His father isn't willing to do that because he is very scared that his wife and family will find out about the affair he had 11 years ago as a result (he is VN too). This is a tough situation and it seems a bit crazy that the Australian embassy in Vietnam is requesting documents from fathers who don't currently have a right to custody according to VN law based upon the childs birth certificate, especially when they are not involved in their children's lives and aren't supporting them or if the child's father resides in another country! Has there been any news for your own situation since last post? My Fiancee has an interview soon and we will post information on the outcome when it happens.

** Have since found that the local authorities only witnessed a statement from my finacee regarding this, they had not issued her a letter (Sorry! was a miscommunication between us) Kaiya is correct below, currently the VN Courts do not issue court orders (or similar) for the custody of children when there is only one parent on their birth certificate**


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## Kaiya (Nov 9, 2012)

Hi Mark,

Thank you so much for your suggestion. I went to see a lawyer here and got a reference letter from her detailing the relevant national legislation that explains my position as the exclusive custodian. 

In good faith, I have tried to contact my ex-partner via numerous methods but have not been able to contact or find him. I have tried the phone number, email and I have also published an advert on the local newspaper and website to look for him. I have tried every method at my disposal but to no avail.

I have submitted copies for newspapers, letter of my lawyer... to the Consulate. A week later, my CO called me on the phone saying that they can not make any decision right now, my application will be on held for another month, the letter from my lawyer mean nothing and I should try different ways to look for him (perhaps in US). I really don't know where he is, he could be right in VN or somewhere in Africa or Europe. Should I go to every single country or place ads in every single country in the world to look for him to satisfied the DIAC? This is really frustrated. Do you have any more idea what I should do? Please help me.


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## Kaiya (Nov 9, 2012)

@Black Dingo: We are on the same boat. I do know how you feel, really. I've been losing my sleep over this. My husband has same thoughts that it is crazy the Consulate is asking for consent of father who has no right at all under VN law.

From my last interview, I questioned my CO what if I could not find the biological father of my children; she said something like they would then consider base on evidences I did try to look for him. At least I find they are trying for me, that's reason why they got back to me quickly and gave me a hint.

I am a member of a great forum in VN which is similar to this, members share lots of experience regarding prepare for application, interview, case officer, how to write statement...etc; it is www.webtretho.com; tell your fiance to sign up and look for topic "Thủ tục cần thiết trước và sau khi đến Úc (Đính hôn/Kết hôn) - Tầng 8"; tell her to look for me by ID "I.M.A.C". I'm willing share everything I have known.

By the way, can you please tell me how could your fiance got a letter from the VN government which confirms her sole right of custody? As I know and from my lawyer, there is no such legal document can be issued by court for single mom like us.


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## Black Dingo (Jun 29, 2013)

Hi Kaiya,

Thanks very much for the VN forum link. My fiancee had trouble finding you on there so we have set her up an account on here now. It would be easier for her to explain to you about the letter she received. I know that she obtained it from local authorities in her hometown and it has written on there that she can bring her son to Australia. Now the CO is saying she still needs fathers permission though. 

She will be in touch with you soon.


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## MarkNortham (Dec 19, 2012)

Hi All -

I've pasted some relevant DIAC policy below - note that this is current as of today (25 Sep 2013) and may become outdated at any point going forward - hope this helps a bit:

_16 The three parental responsibility clauses

There are three options for satisfying both PICs 4015 and 4017. The decision maker must be satisfied of one of the following:

(a) the law of the applicant's home country permits the removal of the applicant

(b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa

(c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Note: Only one of the above clauses needs to be satisfied. For example, if a parent has a court order permitting a child to migrate, the other parent's permission is not required. In rare cases, officers may consider the PICs 4016 and 4018 best interests criteria to refuse a visa in such cases - see PAM3: Act - Act-defined terms - s5G - Relationships and family members - Best interests of minor children.

While parts (a), (b) and (c) carry equal weight in being able to satisfy the PICs 4015 and 4017 requirements, given parental responsibility that includes the right to determine where the child can live is of primary concern for visa decision makers, under policy, part (b) is the preferred, (and often simplest) way of applicants being able to meet PICs 4015 and 4017.

17 The law of the applicant's home country

17.1 Requirements
For PICs 4015(a) and 4017(a), the law of the child's home country must allow the child to be removed.

The question of who has the right to determine where the child shall live varies from country to country. Generally, the person with sole custody of the child will have this right. However this may differ according to the jurisdiction. It will generally be decided by the local law of the country or state of which the child is a citizen or in which they usually reside, that is their 'home country' as defined in regulation 1.03.

To be able to meet part (a) of either PIC 4015 or 4017, officers must be satisfied that the local laws allow the parent (that is, the main applicant or the family head or sponsor) to take the child to Australia either permanently or temporarily, as applicable.

Outside Australia, officers are expected to become familiar with local custody laws. It is open to officers to seek further advice from a local authoritative source should any case-specific issues arise. In Australia, officers should address case-specific queries to the Family Section, National Office, who will as applicable forward them to the Legal Opinions Help Desk.

17.2 Evidencing
For PICs 4015(a) or 4017(a) to be satisfied, officers should satisfy themselves that the local laws allow the parent (that is, the family head or sponsor) to take the child to Australia either permanently or temporarily, as the case may be. This may be evidenced by:

• a court granting permission (that is, a court order) for the child to leave the court's jurisdiction and/or to travel to, or settle in, Australia or
• officers approaching the relevant authorities to confirm the parent's legal status in relation to removing the child. For example, under Swiss law, it is clear that the custodial parent has the right to determine where the child shall reside and it is not necessary to seek the non-custodial parent's permission for the child to migrate.

17.3 If evidence is unavailable
If officers are not satisfied that such information can be obtained, PIC 4015(b)/(c) (or, if applicable, PIC 4017(b)/(c)) should be addressed instead - see:

• section 18 Consent of all relevant persons
• section 19 Australian child orders.

17.4 Court orders
If officers are concerned about the validity of a court order (for example, the order was made a few years earlier and they want to ensure a more recent order has not been granted), it is open to them to request the applicant to have the order re-validated by the issuing authority. If it is only a temporary order, officers will need to check that the period of the order is consistent with the period of the visa being applied for. For example if the residence order is for three months it would not be acceptable for a permanent migration application.

17.5 If the child has a right to decide
If the laws of the relevant country allow a minor to decide its own residence independently of adult permission, under policy this criterion may be considered to be met. For example, in some countries, a child who has turned 16 years of age may be considered an adult and not require parental permission to travel.

In such circumstances, as the Department must be very careful about any potential child abduction issues, it is policy for officers initially to seek parental permission for the child to travel. Where such permission is not forthcoming, officers should closely assess local law to determine if the child indeed has the right to decide their own place of residence. Furthermore, officers may wish to check if there are any particular issues in the case (for example, past or prospective court proceedings) that may be affected by the minor's departure for Australia. If not, then the decision maker can be satisfied that part (a) of PICs 4015 & 4017 have been met and proceed to assess other criteria for the grant of the visa.

18 Consent of all relevant persons

18.1 Requirements
For PIC 4015(b) or 4017(b) to be satisfied, the main question officers should consider is does the adult supporting the child's application (for example, the sponsor or family head) have sole right/responsibility to decide where the child can live. If anyone else has such rights, the preferable form of evidence is a completed Form 1229 (Consent to grant an Australian visa to a child under the age of 18 years). Alternatively, written consent may be in a statutory declaration, or the equivalent in the country) from all such persons (if they are not visa applicants also).

18.2 Assessing & evidencing
For PICs 4015(b) or 4017(b) to be satisfied, officers should:

• satisfy themselves that there is no other person (for example, the other parent or a grandparent) who has custody/residence responsibilities or
• if another person appears to have custody/residence responsibilities (for example, joint custody), ensure that that person has provided a completed form 1229. Alternatively, a written statement (a statutory declaration or equivalent) to the effect that they have no objection to the child settling in, or travelling to, Australia (as the case may be). Where appropriate, this statement should be verified by contacting the person concerned.

18.3 If evidence is unavailable or one parent cannot be contacted
If there is no evidence of any person other than the sponsoring parent having custody/residence responsibility, officers should presume that the parent is the only person who needs to consent to the visa grant. However, they should note the following.

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, PICs 4015(b)/4017(b) cannot be met and applicants will need to satisfy PICs 4015(a)/4017(a) or PICs 4015(c)/4017(c), that is, the sponsor/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.

18.4 If custody is in dispute
It is not appropriate for officers to become involved in custody disputes or to attempt to resolve complex custody/residence issues. In such cases, the parent/adult supporting the child's visa application should be advised to seek legal advice or to approach the Family Court (if in Australia)._


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## Black Dingo (Jun 29, 2013)

Thanks Mark,

According to the information you have provided this shouldnt be such a troublesome issue for a Vietnamese woman who is the only parent on her childs VN certificate. Seems this isnt the case at the moment though and the Vietnamese embassy requires single mothers in VN to meet more than one of the above three to satisfy them. The information you have provided will be very helpful in the event of a refusal and application to the Migration Review Tribunal- Let's pray it doesnt come to that.


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## MarkNortham (Dec 19, 2012)

Hi BD -

Happy to help. Problem is, this is DIAC policy, and policy is not the law. Policy is official guidance as to how DIAC officers should interpret the law, but does not carry the weight of law and does not have to be observed by DIAC or the MRT. Yet, it's an argument at least. Problem is, it's very easy for someone to start claiming "best interests of the child" and "to protect the child" and start imposing all kinds of requirements in response to that concern. And I'm willing to bet that nobody ever got fired at DIAC for being too protective about the rights of a child.

Best of luck to all with this -

Mark Northam


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## Black Dingo (Jun 29, 2013)

Kaiya,

I just finished giving the information provided by Mark full attention and it is a very big help! Have you submitted a form 1229? http://www.immi.gov.au/allforms/pdf/1229.pdf

I have just provided this to my fiancee and it will be easier for her sons father to complete because the local authorities in his hometown will not find out about his past (creating a situation where his family may find out also). Also it will better enable her to meet requirement (b) under section 16.

In your case I believe this form may also be of assistance, as under section 18.3 of the information Mark posted above you have provided the other evidence that the laws of the child's home country permits removal of the child through the information provided by your lawyer.

Thai has just responded and it's a little discouraging: "_No. She in embassy she said she not accept that from and only his signature on that form anh yeu. After he signature he must commune confirms that his signature in the application is genuine from People's Committee_."

Further updates to come.......


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## Kaiya (Nov 9, 2012)

Hi B,

Yes, I did submitted the form 1229 along with my application from beginning. That was exactly what I told Thai to do as her son's father just need to fill in his personal contact details, sign and include his ID/family book notarized. 

Thai told me the same thing that her CO won't accept the form but he need to write his own statement, have local government officer witness to his signature. I think the form is use for Australian and/or others, not for Vietnamese, moreover he is living in VN... what the CO asked for is not hard to get at all. The problem is he does not want to. From what she told me, I find she has been nice enough toward him. Perhaps it is time to do a bit of "act"

Have Thai to contact her son's father again, let him know he will have to take care of his son since she will relocate soon. I bet he does not want that happen because he does not want his family find out he had a child with another woman; otherwise he has no choice, he must write and sign.


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## Black Dingo (Jun 29, 2013)

Hi Kaiya,

Have you heard anything yet? We are looking to bring my fiancee's son here after marriage so will have to reapply for him as part of the second stage because he will have missed initial entry date by then (we received letter granting the visa via email for both her and him today). 

They recently introduced additional charges for sub-applicants (such as dependent children) so we will have to pay the same for the second stage visa whether he is already here or not as I understand it. You may like to consider the same path if you're visa is approved without your children, I am sure the Australian authorities who process the second stage application after marriage will be much more understanding and accepting of your personal situation.

Thai was very lucky as she knows where her son's father lives and he agreed to write the letter to IOM in HCM (he even had to do it twice as they weren't happy with all the information in the first letter!).

Best Wishes,

BD.


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## Kaiya (Nov 9, 2012)

UPDATE ABOUT MY CASE...

-Two weeks after the interview, I have submitted a letter from our Vietnamese lawyer stating the relevant legislation under which exclusive custody is assumed but this has been not accepted and again I have been asked to provide legal documentation, keep on looking for my ex and my application will be on held for another month. 

-Late September 2013, my partner sent an email to the Hon Scott Morrison MP and local Federal Minister seeking for help. 

-Early October 2013, we received an email signed by Vice-Consul (Immigration) Australian Consulate General HCMC states that they have requested advice from the relevant Vietnamese authorities - the Ministry of Justice - as to whether a father has any rights/obligations to their child if the father's name is not listed on the child's birth certificate. Their response will inform their next steps on my case. If the Vietnamese authorities advise that such a father has no rights/obligations over a child, then no further documentation will be required to satisfy child custody for my case.

-The second week of December, my CO called me on the phone ask me a few more questions about my ex and want me to submit (1) evidence of posting a personal announcement in the USA newspaper looking for my ex (2) statutory declaration stating that there has not been any application for nor contest to my custodial rights. 

-A week later I submitted everything I was asked for. My partner once again sent email to the Federal Minister’s office and to the Consulate in HCMC on the last day of December. 

-My visa and my two children were granted on 2nd Jan 2014. My case was tough, it took 8 months to wait. 

All the best to single moms out there and good luck to those who have genuine relationship.

M&A


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## CollegeGirl (Nov 10, 2012)

Kaiya said:


> UPDATE ABOUT MY CASE...
> 
> -Two weeks after the interview, I have submitted a letter from our Vietnamese lawyer stating the relevant legislation under which exclusive custody is assumed but this has been not accepted and again I have been asked to provide legal documentation, keep on looking for my ex and my application will be on held for another month.
> 
> ...


BIG CONGRATS, Kaiya! Sounds like you guys really had to go through hell to make it happen... glad you were finally successful! I know you're celebrating!


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## ilalang (Sep 5, 2013)

congratulations Kaiya! 
good effort and good result, finally


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## Black Dingo (Jun 29, 2013)

That's fantastic news Kaiya!

We hope everything goes very smoothly from here on in for you and your family. 

You have posted some great information on here and I am sure many others will benefit as a result of you sharing such a difficult experience.

Chuc Mung Nam Moi 2014! 

B.D & Thai


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## roaamoey2014 (Feb 10, 2015)

hi if I am not able to get a court document from biological dad for the 4 years old child as its really expensive and take months if not years, I have been told there is another option which is statuary declaration from the dad to give permission for the child to travel overseas, but I don't know how its done, is it just a normal hand written and signed paper or has to be stamped by anyone and declared or something 
please help thanks


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## MarkNortham (Dec 19, 2012)

Hi Roaamoey2014 -

See DIBP Form 1229 which must be signed by both biological parents - see directions on the form for more info.

Hope this helps -

Best,

Mark Northam



roaamoey2014 said:


> hi if I am not able to get a court document from biological dad for the 4 years old child as its really expensive and take months if not years, I have been told there is another option which is statuary declaration from the dad to give permission for the child to travel overseas, but I don't know how its done, is it just a normal hand written and signed paper or has to be stamped by anyone and declared or something
> please help thanks


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## CantoAus (Aug 16, 2014)

MarkNortham said:


> Hi Roaamoey2014 -
> 
> See DIBP Form 1229 which must be signed by both biological parents - see directions on the form for more info.
> 
> ...


Hi Mark, I have a quick question for you - My ex husband has verbally given me permission for the children to move to Australia and we are in the process of making up a new separation agreement that will be filed with the court here in Canada - stating some changes to our child support agreement and it will also state that I have sole custody/guardianship, and the ability to make all legal decisions on where the children will live, and it will state that he has given me his full permission to move them to Australia. If I have this documentation, do you think I should also submit the form 1229? Because I know he would be willing to sign it--but I am also wondering if that might come across as confusing to the people processing the visas as the form wants signatures of people who HAVE the right to make decisions on where the child lives....so asking him to sign when he technically doesn't have the right to make that decision might be confusing? Or do you think it would be beneficial for me to submit both the court filed separation agreement stating all the above things AND the form 1229?


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## wrussell (Dec 31, 2014)

Kaiya said:


> UPDATE ABOUT MY CASE...
> 
> -Two weeks after the interview, I have submitted a letter from our Vietnamese lawyer stating the relevant legislation under which exclusive custody is assumed but this has been not accepted and again I have been asked to provide legal documentation, keep on looking for my ex and my application will be on held for another month.
> 
> ...


Well done!


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## Marcantony (Sep 1, 2010)

CantoAus said:


> Hi Mark, I have a quick question for you - My ex husband has verbally given me permission for the children to move to Australia and we are in the process of making up a new separation agreement that will be filed with the court here in Canada - stating some changes to our child support agreement and it will also state that I have sole custody/guardianship, and the ability to make all legal decisions on where the children will live, and it will state that he has given me his full permission to move them to Australia. If I have this documentation, do you think I should also submit the form 1229? Because I know he would be willing to sign it--but I am also wondering if that might come across as confusing to the people processing the visas as the form wants signatures of people who HAVE the right to make decisions on where the child lives....so asking him to sign when he technically doesn't have the right to make that decision might be confusing? Or do you think it would be beneficial for me to submit both the court filed separation agreement stating all the above things AND the form 1229?


It wouldnt hurt and can only help. I dont follow why it would be confusing.


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