When a child under 18 studies in Australia while the parents stay in mainland China or Taiwan, the parents still hold parental responsibility under Australian law, but they are not there to exercise it. The student visa requires an approved welfare arrangement, yet that arrangement does not give the guardian, relative or school the legal powers of a parent. Families who plan ahead put written authorities, guardianship clauses in their Wills, and a clear structure for money in place before something goes wrong.
The visa rule: who must look after a student under 18
Student visa holders under 18 are subject to visa condition 8532. In practical terms, until the student turns 18 they must live in Australia under one of the arrangements approved by the Department of Home Affairs:
- with a parent or legal custodian, usually holding a Student Guardian visa (subclass 590);
- with a nominated relative aged 21 or over, nominated in writing by the parents and approved by Home Affairs. Approved relationships are grandparents, siblings, aunts and uncles (including step-relations). The relative must be an Australian citizen, a permanent resident, or hold a suitable visa for the period; or
- under welfare arrangements approved by the school or education provider, which issues a Confirmation of Appropriate Accommodation and Welfare (CAAW). This usually means an approved homestay or boarding arrangement.
Both parents normally sign a consent (Form 1229 or a statutory declaration), unless one parent has sole custody. A student cannot arrive before the welfare arrangement starts, and the arrangement cannot be changed without the provider’s written approval and, for a nominated guardian, the Department’s approval. If a guardian needs to leave Australia, they must make suitable alternative arrangements first. A failure to maintain approved arrangements can lead to cancellation of the student’s visa and, where relevant, the guardian’s visa.
The important point for families is this: the visa arrangement is about welfare and accommodation. It does not transfer parental responsibility. A homestay host, a school or an aunt in Melbourne is responsible for the child’s day-to-day welfare for visa purposes, but none of them automatically has the legal authority of a parent to make major decisions.
Who can consent to medical treatment for a minor in Victoria?
In Victoria, the Medical Treatment Planning and Decisions Act 2016 (Vic) applies to children as well as adults, although the rules differ:
- A young person who has decision-making capacity for a particular treatment can consent for themselves. This reflects the “mature minor” (or Gillick) principle. Capacity is assessed by the health practitioner, decision by decision. A 17-year-old may consent to routine treatment, while a 13-year-old may not be able to consent to a complex procedure.
- If the child does not have capacity for that decision, the medical treatment decision maker is the child’s parent, guardian or another person with parental responsibility (s 55(4)).
- A minor cannot appoint their own medical treatment decision maker, even if they have capacity.
- In a genuine emergency, the Act allows a practitioner to give treatment without consent where needed to save life, prevent serious damage to health or prevent significant pain or distress.
For a student whose parents are in Shanghai or Taipei, this means the hospital will usually look to the parents. A parent can generally give consent by telephone or in writing, but time differences, language and a hospital’s need to confirm identity can cause delay. A Student Guardian visa holder who is a parent has full parental standing. A relative or homestay host does not have parental responsibility simply because Home Affairs has approved them for welfare purposes.
Written authorities: useful, but understand their limits
Schools and homestay providers usually ask parents to sign a form authorising staff or the host to arrange medical treatment. These forms are valuable for routine care and emergencies, and doctors commonly act on them. But the law on how far a parent can delegate consent for significant, non-urgent treatment is not settled, and a hospital may still want to speak to a parent. A well-prepared authority should:
- name the authorised adults (for example the nominated relative and the homestay host), with contact details;
- state the scope (routine treatment, emergency treatment, dental, mental health support) and any limits the parents want;
- attach the parents’ identification, the child’s Medicare or Overseas Student Health Cover details and any medical history; and
- be signed in English, with a Chinese translation, and, where it will be used officially, witnessed or notarised.
For a long stay with a relative, some families consider parenting orders made by consent under the Family Law Act 1975 (Cth), which can give the relative parental responsibility for specified matters. Whether that suits a family depends on the facts.
Appointing a guardian in your Will
Every Australian state and territory allows a parent to appoint a guardian for a child after the parent’s death. In Victoria, the provision sits, perhaps unexpectedly, in the Marriage Act 1958 (Vic). The Civil Code in mainland China and Taiwan’s Civil Code also allow a parent to designate a guardian by Will.
A testamentary guardian appointment has important limits under Australian law:
- The surviving parent keeps parental responsibility. If one parent dies, the other parent continues to have parental responsibility under the Family Law Act. A Will cannot take it away. The guardian clause is most effective when the second parent dies, or when it is made by a sole surviving parent.
- The court has the final say. A testamentary appointment is subject to any parenting order. The Federal Circuit and Family Court of Australia decides according to the child’s best interests, which are paramount, and can make orders different from the Will.
- Guardianship is about the child, not the money. The guardian looks after the child’s care and welfare. Who controls the child’s inheritance is decided by the executor and trustee provisions of the Will. It is often sensible to separate the two roles, or at least to build in oversight.
For families whose child lives in Australia, it makes sense to name the same guardian, and the same substitute, in both the Australian Will and the Will in mainland China or Taiwan, so that there is no conflict between the two documents. Our article on whether you need more than one Will explains how the two Wills should be coordinated. A guardian who lives in Australia, holds a suitable visa and has agreed to act is far more useful in practice than a relative who would need to travel.
If a parent dies or loses capacity while the child is in Australia
Consider a typical situation. A 15-year-old from Hangzhou lives in a Melbourne homestay under a CAAW. Her father dies suddenly in China. Her mother is unwell and cannot travel. An aunt in Sydney wants the girl to stay and finish Year 12. Her paternal grandparents want her home.
Several things follow:
- Parental responsibility continues with the mother. She can decide where the child lives and goes to school, subject to the visa.
- The visa still requires an approved welfare arrangement. If the arrangement changes (for example the aunt becomes the nominated guardian), the school and Home Affairs must approve it.
- If the family cannot agree, any person concerned with the child’s care, welfare or development, including a grandparent or aunt, may apply for parenting orders. Australian courts can hear the case where the child is present in Australia. The court decides according to the child’s best interests and gives weight to the child’s views according to her maturity.
- If both parents died with no workable arrangement, child protection authorities in Victoria may become involved. A clear Will appointment and a willing guardian in Australia help to avoid this.
Mainland China and Taiwan are not parties to the Hague Convention on the Civil Aspects of International Child Abduction (Hong Kong SAR and Macao SAR are covered). If a dispute arises over whether a child stays in Australia or returns to mainland China or Taiwan, there is no Convention return mechanism. The outcome may depend on proceedings in each place. This is one reason families benefit from settling these questions in advance, and why mediation between relatives in different countries is often worth trying before anyone goes to court.
Incapacity raises similar issues. An Australian enduring power of attorney made by a parent may not be recognised in mainland China or Taiwan, and documents made there may need to be authenticated for use here. We work alongside lawyers in mainland China and Taiwan so that both sets of documents work together. See our article on notarising and authenticating Wills and powers of attorney.
Money for the child: accounts, property and trusts
Bank accounts and day-to-day funds
A student can hold an Australian bank account, and many families keep a parent as a joint holder or signatory. Two points are often overlooked:
- Tax on a minor’s investment income. Interest and other investment income of a person under 18 is taxed at special higher rates once it passes a low threshold ($416 a year for residents in 2025–26). Different rates apply to non-residents. A student here for a long course may be an Australian tax resident. Large balances in a child’s name therefore have tax consequences, and advice from an accountant should be obtained.
- Source of funds. Banks ask where money comes from. Remittances from mainland China must comply with its foreign exchange rules. Keep records of every transfer and its purpose, and obtain advice in mainland China on the remittance itself.
Buying property for a student
Parents often consider buying an apartment for the child to live in. Before doing so:
- Foreign investment rules. A student visa holder and parents living overseas are generally foreign persons. From 1 April 2025 to 30 June 2029, foreign persons, including temporary residents, generally cannot buy established (previously occupied) dwellings. New dwellings generally still need foreign investment approval, and fees apply.
- State taxes. Victoria imposes a foreign purchaser additional duty and an absentee owner land tax surcharge. See Foreign Owners of Australian Property.
- Title in the child’s name. A minor can be registered on title, but a minor generally cannot validly sign a contract to sell, mortgage or transfer the property. Banks generally will not lend to a minor. Once the child turns 18, the property is legally theirs to deal with, whatever the parents intended. Our article on property in a child’s name explains how intentions about ownership are tested when families later disagree.
- Trusts. A properly drafted trust, or a testamentary trust in a parent’s Will, can hold assets for a child with a trustee in control until an age the parents choose. Tax, foreign investment and surcharge rules for trusts with foreign beneficiaries need careful review before anything is signed.
Turning 18: the student’s own documents
At 18 the student becomes an adult in Australian law. Parents’ authority ends, and doctors, banks and universities will deal with the student alone. This is the time for the young adult to sign their own documents:
- A Will. A minor’s Will is generally not valid in Victoria unless the minor is married or the Supreme Court authorises it. From 18, a student who holds Australian assets or a property should have a Will.
- An enduring power of attorney and a medical treatment decision maker appointment. A person must be 18 or over to make an enduring power of attorney in Victoria. Without one, if the student is seriously injured, the parents may have to apply to VCAT for authority.
- Superannuation. A student who works part-time will have superannuation, which does not automatically form part of their estate and passes under the fund’s rules and any death benefit nomination. Superannuation may also be claimable as a departing payment when the student leaves Australia permanently.
Scams and coercion targeting Chinese students
Australian police, including NSW Police with the Australian Federal Police, have publicly warned about “virtual kidnapping” scams. Callers pose as Chinese police or officials, accuse the student of a crime, cut them off from family, and pressure them into staging photos of their own “kidnapping”. The images are then used to demand large ransoms from parents overseas. Agree a family verification process in advance, such as a code word, a second trusted adult in Australia and a rule that no money is sent without speaking to the child directly. Report any threat to police. No genuine police or consular officer will demand money transfers to clear a student’s name.
Practical checklist for parents
| Item | What to put in place |
|---|
| Visa welfare | Confirm the condition 8532 arrangement, its dates and who to contact if it must change |
| Medical authority | Signed bilingual authority naming local adults; health cover and medical history on file |
| Wills | Guardian and substitute guardian named consistently in Australian and overseas Wills; separate trustee for funds |
| Guardian’s consent | Written confirmation that the guardian will act, and has a suitable visa or status |
| Money | Records of source of funds; tax advice on accounts in the child’s name; structure decided before buying property |
| Age 18 | Student signs a Will, an enduring power of attorney and a medical treatment decision maker appointment, and reviews superannuation |
| Safety | Family verification code and an agreed plan for suspicious calls |
Common mistakes
- Assuming the homestay, school or Student Guardian visa relative has the legal powers of a parent.
- Naming a guardian in a Will in mainland China or Taiwan but not in the Australian Will, or naming different people.
- Appointing as guardian someone who has not agreed, or who could not obtain a visa to live in Australia.
- Putting a property in a 16-year-old’s name without considering that the child will control it outright at 18.
- Forgetting that a student turning 18 needs their own Will and powers of attorney.
How we can assist
We prepare Australian Wills with guardianship and testamentary trust provisions, bilingual medical and welfare authorities, enduring powers of attorney for students turning 18, and advise on holding property and funds for a child in Australia. Where relatives disagree, we can help resolve the matter through confidential mediation. We work alongside lawyers in mainland China and Taiwan so that the documents in each place are consistent.
Related reading
Chua Tan Associates acts for families and their professional advisers on Australian legal matters with a cross-border dimension, working alongside lawyers and tax advisers in mainland China, Taiwan and Hong Kong. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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