Ms_Fi

Hi,

We're planning on emigrating to Australia on a 310 visa at the end of the year. My partner is the sponsor and I'm taking my 3 children with us.

Does anyone know what would happen with the kids if I was to die before they were granted their permanant residency? Would they have to come back to England?

No, I'm not planning on dieing but obviously I can't guarantee it won't happen and I'm really worried the kids would have to come back to their dad (who doesn't want them).

Does anyone know? Would I be able to write a new will in Australia giving custody of the children to my partner should anything happen to me? I've already got one in the UK but I'm worried about the immigration regulations of our relationship having to still be in place when the 110 visa is granted.

slackbloke

Sorry, not really sure about the visa situation but I would assume if you have authority from their father to take them, the issue it not with the visa. I'd be more concerned about the children's paternal family (whether it be the father or grandparents) who could legitimately claim guardianship. I am not sure what you can have in a will in the UK or Australia that has any weight over this matter. Does your husband have parental responsibilty or has adopted them? That is the first thing I would establish, otherwise you husband has no rights regarding them (I have a step-child and we have discussed this type of issue).

Ms_Fi

Thanks for your reply - my exhusband (the childrens father) is more than happy for me to take the children abroad (he works on the basis as far away as possible) and has signed the papers to allow me to do so.

I'm not married to my new partner (a 310 visa is a same sex visa) and she doesn't have any parental repsonsibility over the children, although this is something we're looking into.

I know that my ex wouldn't insist on the children being brought back, and neither would his parents (none of them have seen the children for years) and it'd be my wish (and the wishes of the children) that they stay in Australia with my partner and her family.

It's so complicated - I think I might have to take legal advice on this.

Pollyana

I woudl think you'd need to talk to an Australian lawyer as soon as possible, as you'll need a will valid under Australian law, stating who would have custody of the children.

slackbloke

Ah, sorry for the ignorant assumption (but then I am a man after all :-). Have you been given an assurance from the UK solicitor that your will is valid for assigning custody (which is how I read what you said)? The father will still have parental responsibility (whether he wants it not) and you can't just overturn that. My understanding is that you can only obtain custody through the courts (whether in the UK or Australia). I don't think there is any issue here in terms of visa/immigration, but it is a matter of family law.
The way I understand it is that if, for instance, my wife died, my stepchild would have to return to his father in the UK and nothing in a will could prevent that. I would still have to go to court to obtain the correct paperwork for custody.

Ms_Fi

My will states who I wish to appoint as guardian for the children and as I have sole residency of them I've been told that my wishes will be followed.

I sincerely hope that's correct as I'd hate for them to have to go and live with someone they haven't seen in years. I'm def going to have to try and get a hold of my solicitor this week and see what she says.

slackbloke

Ah, yes you should be ok if you have sole responsibility.