Emancipation in Australia is the legal process of children “divorcing their parents”.
It is not uncommon to find that children are affected by domestic abuse, be it physical, emotional, or psychological. In such circumstances, when parents do more harm than good to their child, emancipation is often considered by the child.
It is not the same as a legal divorce between couples, but children can divorce their parents if they have strong reasons to do so. If the child wishes to emancipate from his/her parents, an application must be made to the Children’s Court.
There must be a solid reason to apply for emancipation in Australia. Generally, applications for emancipation in Australia are made when the child is at the risk of being harmed, or has already harmed by his/her parents.
Reasons why Emancipation in Australia is considered
- Emotional or Psychological harm or neglect;
- Sexual abuse;
- Physical injury;
- Child abandonment; or
- Death or incapacity of parents
Apart from these reasons, an application for emancipation can also be made in case of irreconcilable differences, even in the absence of harm. As a concept, irreconcilable differences simply means that the child cannot get along with his/her family anymore and the issues cannot be resolved.
In this case, while approaching the Court, it is important to show evidence of previous attempts to reconcile through the use of counselling and mediation.
What does Emancipation in Australia mean?
The legal process of ‘emancipation’ is relevant only to children who are under 18 years of age. Once a minor child has been emancipated from his/her parents, the state becomes the child’s guardian. This means that the parents cease to have authority over the child, Furthermore, the parents will stop having any legal responsibilities, duties, or obligations.
For children who are over 18, there is no legal process of ‘emancipation’ in place. What takes place if the child is over 18 is possibly a natural detachment or estrangement from parents. There are no provisions available in Children’s Court for emancipation in cases of adult children.
In the case of adult children, there are some legal complexities that could arise. For example, in cases where adult children have become estranged from their parents, they might not allow their parents to maintain a relationship with their own children. That is, they might not allow a grandparent-grandchild relation to be pursued.
In such a case, the estranged parent can exercise their legal right as a grandparent and apply for a parenting order. As stated under Section 65C of the Family Law Act, grandparents are allowed to apply for parenting orders to gain access to their grandchildren.
If this point is relevant to you, read more on the legal rights of grandparents in Australia here.
What does Emancipation in Australia include?
After an application for emancipation has been made, the Court will evaluate the parents’ current circumstances and make an order that ensures the child’s protection.
Usually, the Court makes orders such that the parent-child relationship is still maintained in situations where the Court deems it appropriate to do so.
There are different possibilities of the kinds of orders that the Court can make with regards to emancipation in Australia.
If the Court thinks the differences can potentially be resolved, the following orders could be made: –
- The child is safe living with his/her family, and the State will have the responsibility for the child and will provide assistance to the family in resolving all issues.
- Residing with the family is unsafe for the child, and the State will remove the child from the family for a temporary period. The temporary period can be as long as 12 months in certain cases. The objective of the Court is to reunite the child with his/her family once all issues have been resolved.
- The child is safe to live with the family, but an undertaking will be necessary. An undertaking is a formal pledge.
If the Court thinks the differences are major, with very little chance of reconciliation between the child and his/her parents, the following orders could be made: –
- Because issues cannot be resolved, a carer will be appointed for the child. The carer can be an extended family member, who will have parental responsibility for a period of up to 2 years.
- A long-term carer will be appointed for the child, who will have parental responsibility possibly until the child turns 18
- A permanent carer will be appointed who will have sole parental responsibility.
These safety or protection orders are made by the court to ensure the child’s wellbeing and welfare.
In certain cases, these child protection orders can be revoked, if an appeal is filed. The Court will consider the appeal based on the best interests of the child. If the court is satisfied that revoking the order will benefit the child, then it will consider the appeal.
Advice for Emancipation in NSW, Australia
A hearing date will not be set by the Court until it is satisfied that all other approaches, including counselling and mediation, have been sought. For purposes of counselling and mediation, it is important to seek guidance so you can you navigate these processes.
We recommend that you reach out to the Department of Communities & Justice (NSW) for all emancipation related enquiries. You can visit the DCJ website here.
For other family law enquires, our solicitors can help you out. We can explore all legal avenues in resolving the ongoing disputes. Note that in cases where a safety order for the protection of the child has been made by the Court, and if an appeal needs to be made by the family, it is essential to meet with a lawyer.
This is because in Australia, the different jurisdictions have different limitations for filing an appeal. Discussing about emancipation in Australia with an experienced family lawyer will enable you to understand the rules and regulations that are applicable to your jurisdiction.
The lawyers at JB Solicitors will build meaningful connections and help all involved parties in solving disputes and working through the legal processes.
Contact JB Solicitors today to speak with our friendly lawyers.
