A person whose partner relationship has ended may still be granted the permanent Partner visa where there is a child and defined custody, access or maintenance circumstances apply. The provision is usually called the child-of-the-relationship provision, but that phrase does not appear in the Migration Regulations 1994 and it is a little misleading: the clause turns on legal arrangements about a child, not on having had a child together.
What clause 801.221(6) requires
The permanent visa provision is clause 801.221(6) of Schedule 2 to the Migration Regulations 1994. An applicant meets its requirements if:
- the applicant is the holder of a subclass 820 visa; and
- the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
- either or both of two sets of circumstances applies — the family violence circumstances in subparagraph (c)(i), or the child circumstances in subparagraph (c)(ii).
The child circumstances in subparagraph (c)(ii) have two sides, and both must be satisfied in respect of the same child.
Your side. You must:
- have custody or joint custody of, or access to; or
- have a residence order or contact order made under the Family Law Act 1975 relating to;
at least one child.
Your former partner's side. In respect of that same child, the sponsoring partner must:
- have been granted joint custody or access by a court; or
- have a residence order or contact order made under the Family Law Act 1975; or
- have an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Two things follow from the wording. First, on your side the clause refers to custody or access without expressly requiring a court order, while on the sponsoring partner's side custody or access must have been granted by a court. Second, the sponsoring partner's limb can be satisfied by a maintenance obligation alone, and "any other formal maintenance obligation" is broader than a Family Law Act order.
Key facts
Shared parenthood on its own does not meet this clause. Two people can have a child together, separate, and still fall outside it entirely if there is no court-granted custody or access, no residence or contact order, and no formal maintenance obligation on the sponsoring partner's side.
The same structure exists at the temporary stage. Clause 820.221(3) allows the 820 to be granted where the applicant would continue to meet the time-of-application requirements except that the relationship has ceased and the same family violence or child circumstances apply. Clauses 820.211(8) and (9) do equivalent work for people who hold, or have held, a Prospective Marriage (subclass 300) visa; see moving from a subclass 300 visa.
Subclause 801.221(7) confirms that the usual two-year wait does not block a grant under subclause (6): the Minister may approve the grant less than two years after the application was made.
The evidence that supports it
Two bodies of evidence are needed, and people usually assemble only the second.
Evidence of the relationship before it ceased. Paragraph (6)(b) asks whether you would meet the ordinary criteria but for the cessation, so the relationship as it stood before the end is still assessed. That is the ordinary partner visa material — see relationship evidence — covering the period up to separation rather than stopping when things became difficult.
Evidence of the custody, access or maintenance circumstances. In practice this means:
- family law orders: sealed copies of any court orders naming both of you in relation to the child, with the dates;
- parenting plans and agreements, where they exist, together with anything showing they are being followed;
- child support arrangements: an assessment, a registered agreement, or payment records. Child support in Australia is administered through Services Australia, and its records are the ordinary proof of a formal maintenance obligation;
- evidence of contact: a schedule actually being kept to, messages arranging handovers, school and medical records naming each parent, photographs over time.
Unsealed drafts, informal text-message arrangements and verbal agreements are the common weak point. They may describe the real situation accurately and still not answer the words of the clause.
How this differs from the other two exceptions
Readers confuse three separate things. They are not alternatives to one another and they are decided at different points.
| What it is | Where it sits | When it applies | |
|---|---|---|---|
| Child provision | Custody, access or maintenance circumstances after a relationship ends | Clause 801.221(6)(c)(ii); clause 820.221(3) | The relationship has ceased |
| Family violence | Family violence committed by the sponsoring partner | Clause 801.221(6)(c)(i); Division 1.5 | The relationship has ceased |
| Compelling and compassionate circumstances | An excuse from the 12-month de facto requirement | Regulation 2.03A(3)(b) | At the time of application |
The family violence limb sits in the very same paragraph as the child limb, and the clause says "either or both of the following circumstances applies" — so they can be run together, and one failing does not sink the other. They are proved in completely different ways, and only the family violence route involves an independent expert whose opinion the Minister must take to be correct. That process is set out at family violence provisions.
Compelling and compassionate circumstances are a different provision altogether. Regulation 2.03A requires a de facto applicant to have been in the relationship for at least 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa, or the relationship is registered. That question is about whether you could apply at all; it is settled at lodgement and it has nothing to do with a relationship ending afterwards. See exemptions from the 12-month rule and de facto partner requirements.
The third route after a relationship changes is the death of the sponsoring partner, which has its own clause and its own test — see if your sponsor dies.
Where family law questions belong
This page describes a migration clause. It is not family law advice, and nothing here should be used to decide what orders to seek, what a parenting arrangement should look like, or what to agree to in a child support matter. Those are questions for a family law practitioner, a community legal centre or legal aid in your state or territory, and they should be answered on their own merits. Seeking or agreeing to orders for the purpose of a visa application is not a sound basis for a family law decision.
The migration question — whether the arrangements you have answer clause 801.221(6) — is a separate one, for an immigration lawyer.
Getting this right
The criterion people miss here is the sponsoring partner's side of the test. Applicants gather everything about their own relationship with the child and nothing that establishes the former partner's court-granted custody, access, order or maintenance obligation, and the claim fails on a limb they did not know was there. Deadlines compound it: when the Department writes before deciding, the period to respond is short and is stated in the letter. Applications prepared by an Australian migration lawyer are more likely to succeed, because the evidence is put in the form the clause requires rather than the form that feels natural to describe.
What to do next: read if the relationship ends for what has to be notified and by when. If a decision has already been made, check the date on your letter and see appealing at the ART.
Common questions
Can I still get the 801 if we separated but we have a child together?
Not on the basis of shared parenthood alone. Clause 801.221(6) of Schedule 2 to the Migration Regulations 1994 requires two things at once: that you have custody or joint custody of, or access to, a child, or a residence order or contact order under the Family Law Act 1975 relating to that child; and that in respect of that same child the sponsoring partner has been granted joint custody or access by a court, has a residence order or contact order under the Family Law Act 1975, or has an obligation under a child maintenance order or another formal maintenance obligation. Both sides have to be satisfied.
Does the child have to be the biological child of both of us?
The clause does not say so. It refers to at least one child in respect of whom the applicant has custody or access and in respect of whom the sponsoring partner has court-granted custody or access, a residence or contact order, or a maintenance obligation. The child is identified by those legal circumstances rather than by parentage. Whether a particular child and a particular set of orders fit the wording is a question to put to a migration lawyer.
Is this the same as the family violence provisions?
No, although they sit in the same clause. Subparagraph 801.221(6)(c)(i) is the family violence limb and subparagraph (ii) is the child limb, and the clause says either or both of those circumstances applies. They can be run together, they are proved with completely different evidence, and only the family violence limb involves an independent expert.
Is this the same as compelling and compassionate circumstances?
No. Compelling and compassionate circumstances appear in regulation 2.03A, which is about whether a de facto applicant had to be in the relationship for 12 months before applying. That question is decided at the application stage and has nothing to do with a relationship ending later. The two are often confused because both are described as exceptions.
Does the two-year wait still apply?
No. Subclause 801.221(7) provides that nothing in the two-year rule prevents the Minister approving the grant of a subclass 801 visa, less than two years after the application was made, to an applicant who meets the requirements of subclause (5) or subclause (6). The child provision is in subclause (6).
Sources
Keep reading
Family Violence Provisions for Partner Visa Applicants
How the family violence provisions work for 820 and 801 applicants: what the Department must be satisfied of, the two ways a claim is made out, and the evidence.
Read the guide →
If Your Sponsor Dies During Processing
What happens to an 820 or 801 partner visa application if the sponsoring partner dies: the clause that applies, what must be established, and the evidence.
Read the guide →