Child Emancipation

In Australia, parents are legally responsible for their children until they turn 18. There are some circumstances, however, when a minor may wish to “divorce” their parents before that age. There have been high-profile examples of minors who have become emancipated, including successful child performers in the United States. While the concept of child emancipation is not found in Australian law, there are federal and state/territory laws that allow a child to apply for a court order granting legal freedom from parental responsibility. More importantly, however, under Australian law there is rarely a legal need for a child to seek true emancipation, although of course there may be emotional reasons why a legal separation from their parents may be a desired outcome for some young people.

Granting a minor legal independence

While Australia does not have a legal process known as emancipation, there are various statutes and common law precedents that may provide minors with a path to independence. For instance, family law is strongly focused on the best interests of the child. If it is determined to be in the best interests of a child that neither parent should retain parental responsibility, the courts may issue an order to that effect. This decision would effectively terminate the parents’ legal authority over the child. While this is not strictly emancipation, it effectively removes the child from the control of the parents. Once it has been determined that this is best for the child, the courts will consider the secondary question of whether someone else needs to be appointed to exercise parental responsibility, or whether the child can be independent.  

No Australian court will lightly grant independence to a minor. Rather, before making any decision that leaves a child without the support and guidance of a caring adult, the courts will assess a variety of factors, including:

• the emotional maturity of the minor, and their mental capacity to live independently and manage their own affairs;
• the best interests of the child, and whether emancipation would benefit the child’s emotional, psychological, and physical well-being. This is particularly relevant if there is a need to protect the minor from neglect, abuse or exploitation;
• whether the minor is in a de facto relationship or married, which may indicate suitability for independence from their parent or guardian. This acknowledges that a minor in a serious committed relationship has already taken on adult responsibilities beyond their age;
• whether the minor is a parent who is exercising parental responsibility;
• whether the minor has the means to support themselves financially including meeting their essential needs such as housing, education and healthcare, without support from a parent or guardian;
• the availability of safe and stable living arrangements for the minor;
• if the child is already in the care of the state, often because of neglect, abandonment or abuse by a parent, if independence from the state is in the child’s best interests; and
• the absence of coercion, as the court must be satisfied that the decision to seek independence is voluntary and not coerced by any other party.

Reasons for child emancipation

When a young person contemplates child emancipation in Australia, it is often because they believe that they need to be emancipated to do certain things, such as enter into a contract, get married, or choose their own medical treatments. In some cases, this desire may be based on a misapprehension about the law in Australia. In most cases, as outlined below, there is no need for a child to be emancipated to achieve a particular legal outcome.

Entering into a contract

In Australia, the general rule is that you must be 18 to enter into a legally binding contract. However, this rule is subject to a host of exceptions. In an obvious example, you do not need to be 18 to enlist in the armed forces, a decision that can have serious and long-term implications. In fact, in most states and territories, a minor can enter into any binding employment agreement or commercial contract that is standard or appropriate for their age, or that is directly for their benefit. This would include, for instance, a contract for employment, gym membership or accommodation. In cases where the other party requires extra assurance that the child will be bound by the contract, they can seek a court’s consent for the child to enter into the agreement.

Getting married

In Australia, marriage is the union of two people, both of whom must be 18 years of age. If a young person is emancipated and they wish to be married before turning 18, they must first apply for a court order and obtain the necessary consents and dispensations under the Family Law Act 1975. A person who is under 18 but not emancipated would also need a court order before they marry and would need to include this in the Notice of Intended Marriage paperwork. Importantly, it is insufficient for the parents to consent to the marriage of a minor: only a court can determine that the marriage is in the best interests of the child. Although the assessment of the court would likely be more straightforward for an already emancipated young person, the end result would likely be the same if the applicant had the requisite maturity to be considered ready for either emancipation or marriage.

Making medical decisions

One of the areas of focus when it comes to child emancipation is consent for medical treatment. People often assume that a child requires the consent of their parents to any medical treatment and that the wishes of the parents will override those of the child. But this is not the case, as Australian courts follow the Gillick competence principle, derived from the 1986 UK case Gillick v West Norfolk and Wisbech Area Health Authority. This principle allows that minors can make decisions about their own medical treatment without parental consent if they have sufficient competency. This legal principle reflects a broader recognition that minors may have capacity to make independent decisions well before the age of 18. In Australia, if a minor has sufficient intelligence and understanding to make their own health decisions, they can do so without parental approval. This means that a minor can make autonomous decisions on sensitive matters such as gender-affirming care, contraception, and abortion. In fact, a child attending a medical appointment has a right of privacy in their medical information, including privacy from their parents or guardians.

While Australia does not have a formal emancipation process, there are legal ways for a child to achieve a degree of independence. Minors can seek court orders to make their own decisions, and even live independently, under the right circumstances. However, courts are only likely to issue such orders if the child can sustain themselves and it is in their best interests. For advice about child emancipation in Australia, please contact Go To Court on 1300 636 846.