Can you divorce your parents in Australia? How child emancipation works

Can divorce your parents in Australia? Keep reading to understand how the legal system works in Australia, in regards to child emancipation.

By Camilla Saunders-Browne, Lawyer at Australian Family Lawyers – Kordos Lawyers, Melbourne

Can you divorce your parents in Australia?

Yes, a child can be divorced in the sense that they are legally recognised as an adult, and the parents no longer have parental responsibility for the child. This is also sometimes known as child emancipation.

It is not the same as a legal divorce between couples in Australia. Although there is no unified legislation in Australia, the State and Territory laws* are reasonably similar in their grounds for an application to the Children’s Court and the types of orders that can be made.

*Children, Youth and Families Act 2005 (VIC); Child Protection Act 1999 (QLD); Children and Young Persons (Care and Protection) Act 1998 (NSW); Children’s Protection Act 1993 (SA); Children and Community Services Act 2004 (WA); Children, Young Persons and their Families Act 1997 (TAS); Children and Young People Act 2008 (ACT); Care and Protection of Children Act 2007 (NT).

Why would someone want to divorce their parents (be emancipated)?

An application can be made when there is evidence of harm to the child, and a protection or safety order is sought. The Children’s Court can grant a protection/safety order on the grounds of:

• child abandonment;
• death or incapacity of the parents;
• physical injury;
• sexual abuse; and
• emotional or psychological harm or neglect.

In Victoria, an application can also be made based on irreconcilable differences. The majority of these applications are resolved outside of Court as they require the parties to show evidence of genuine attempts to reconcile through counselling and meditation. If unsuccessful, then the Court may consider making an order to emancipate a child from their parents.

What does child emancipation entail?

It is generally considered the best interest of the child to have a relationship with the parents. Upon an application being made, the Court will consider the parties’ personal circumstances and make an order that protects the child with the aim of maintaining the parent-child relationship where appropriate.

The name of the protection and safety orders vary per jurisdiction but have the same effects. The Court can make the following orders:

• It is safe for the child to live with the family, but an undertaking is required.
• It’s safe for the child to live with the family, with the State having responsibility for the child and assisting the family in resolving the issues.
• It is unsafe for the child to reside with the family, and the State removes them for a temporary period (can be up to 12 months). The intent is to reunite the families once issues have been resolved.
• Issues cannot be resolved, and the child is given a carer, preferably an extended family member, to have parental responsibility for an extended period (can be up to 2 years). 
• Issues cannot be resolved, and there is a suitable long term carer for the child; the carer is to have parental responsibility until the child reaches 18 years of age.
• A permanent carer to have parental responsibility for the child to the exclusion of all others.

How would a parent resolve the matter?

If a parent or child seeks to have a child protection/safety order varied or revoked, legislation provides avenues for appeal. A court will only consider varying or revoking such an order if it is satisfied it is no longer appropriate and in the best interest of the child to do so.

The limitation for filing an appeal and which Court to appropriately file the appeal with varies between jurisdictions, so it is essential to check the relevant legislation.

Some final advice

Although uncommon for a child to successfully be emancipated from their parents in Australia, it is possible. If you’re the one making such an application to divorce your parents, consider the circumstances and research the relevant legislation to determine which order would be most appropriate to seek.

Otherwise, if you believe it is safe to stay with your family, consider alternative methods such as family counselling and mediation services to resolve the issues.

If you are feeling unsafe or experiencing harm with your family, please contact our friendly team directly or request a callback via the form below. We can help assist in protecting you and making an application to the Children’s Court.