Defining Legal Independence for Minors
Emancipation is the process by which a person under 18 years of age can seek independence from their parents.
It is important to note that the legal concept of emancipation is more commonly used in the American legal system rather than in Australia. Instead, in Australia court orders can be made which have similar results.
In Australia, parents will have legal responsibility for their children until they turn 18, unless a court order states otherwise. If a child is emancipated from their parents, the parents will have diminished legal responsibility for the child. The state may then become the legal guardian of the “emancipated child”.
A child can only be emancipated if it is ordered by the Childrens’ Court.
Emancipation can be sought by either the child or the parent, usually by way of a protection or irreconcilable differences application. In Victoria, these orders are governed by the Children, Youth and Families Act 2005 (“the Act”).
Signs your Child might be Considering Emancipation
Emancipation is usually only sought by a child when they are impacted by some sort of abuse, neglect or other harm, or where there are irreconcilable differences. If any of these problems have occurred in the parent/child relationship, it may be more likely that a child will seek to become emancipated.
Where a child has applied to the Court for orders, a Court hearing will ensue which will require the parents be served with Court documents to ensure they are aware of the proceedings.
How Emancipation Impacts the Family
The impacts of emancipation depend on the particular orders made by the Court. Where the Court thinks there is a possibility the issues between the child and their parents can be resolved, they may make orders which are not as harsh as complete emancipation.
Complete emancipation may worsen familial relationships which could have otherwise been repaired.
Emancipation can be challenging for parents to accept and difficult for children to adapt to. However, emancipation can also be positive long term for children who are struggling in the care of their parents.
Issues can arise down the track if emancipated children have children of their own. In these cases, relationships have often been damaged and the grandparents are restricted from seeing their grandchildren.
What Courts Consider in Emancipation Cases
Courts will consider many matters including:
- Whether it is safe for the child to remain with their family;
- Whether there is possibility of reconciliation between the child and the family;
- Whether there is an extended family member who can be responsible for the child;
- The age of the child; and
- The outcome of previous attempts to rectify the relationship between the child and parent.
The Court must also consider the best interests of the child and must only make a protection order if it is in the bests interests of the child to do so. The Court must also have regard to advice provided by the secretary with regards to the child.
The Process of Emancipation
A child or parent can make an application to the Court for a finding of irreconcilable differences as per section 259 of the Act.
The application must then be served on the other party. Parties must then engage in conciliation counselling to try and resolve the matter without the need for the matter to proceed to court.
If the matter is not resolved through conciliation counselling or mediation, the matter will proceed to the Court for determination.
If the Court finds that a child is in need of protection or that there is a substantial and irreconcilable difference between the parent and child, the Court may make a protection order under section 274 of the Act including one of the following:
- A family preservation order which gives the state responsibility for the supervision of the child but does not affect a person’s parental responsibility for the child and still allows for the child to be placed in the day to day care of one or both of the parents;
- A family reunification order which confers parental responsibility for the child and responsibility for the sole care of the child on the state but does not affect the parental responsibility of another person in relation to making decisions about major long-term issues unless otherwise stated in the orders;
- A care by secretary order which confers parental responsibility for the child on the state to the exclusion of all others; or
- A long-term care order which confers all parental responsibility for the child on the state to the exclusion of all others and remains in place until the child turns 18 or until they marry.
Resources and Support for Parents Through Emancipation Proceedings
These types of cases are extremely rare in the Australian legal system. As such it is strongly recommended that anyone involved in an emancipation case should seek legal advice from a reputable family lawyer.
Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.