Sisters In Law: Can a child legally divorce their parents in Australia?

The teenager claims his mum and dad never wanted him, shipping him off to boarding school and fighting about who has to take him during holidays.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise a 16-year-old on whether he can legally divorce his parents.

Question:

Can I divorce my parents? I’m 16 years old and have always had a strained relationship with them. They separated when I was three and it’s clear to me now that neither of them wanted to keep me. I was shipped off to boarding school very young and they’d fight over who had to take me in the holidays. They’re both quite wealthy and would use money as a way to palm me off and keep me quiet. I’m starting to look at university courses and I want to legally divorce my parents so I can be financially independent from them and apply for support and help that will mean they can’t have a hold over me anymore. Is it possible for me to divorce them and how would it work? – Timmy, WA

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The teenager said his parents use their wealth to palm him off and keep him quiet. Picture: iStock

Answer:

We’re sorry you’re having a difficult time. You may be pleased to know that Australia is a signatory to all significant treaties that impact on the rights of children. Children are generally considered to be people below the age of 18. There are federal and state/territory laws that provide rights and protections to children.

Divorcing your parents is a big decision and you should speak to a trusted family member, adult or counsellor before proceeding down this path. They will likely be able to assist you to navigate through the challenges you have with the relationship you have with your parents.

If after trying to reconcile the relationship with your parents, speaking to trusted adults/family members and a counsellor, you still wish to divorce your parents then you will need to make an application to the court.

A child is legally able to “divorce” their family, Timmy. Sometimes it is called child emancipation.

In Australia, cases involving a child wanting to divorce their parents is handled by the Children’s Court.

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They recommend talking to a trusted family member, adult or counsellor. Picture: iStock

The court case would involve a child becoming legally recognised as an adult so their parents no longer have any control or authority over them, or any responsibility towards them to provide for them or keep them safe. Alternatively, the State will become the child’s guardian until they turn 18.

Usually these applications made by children to divorce their parents are where the child has been harmed by the parents, or is at risk of harm. However, an application can also be made where a child states there are ‘irreconcilable differences’ (this is the same as a normal divorce between married adults).

The Children’s Court will not provide a date for the hearing of the application until you can show that you have attempted mediation and counselling and they have failed to help you reconcile with your parents.

You’ve also mentioned applying for support. We’ve assumed you mean financial support from Centrelink. You are not required to divorce your parents for this.

If you apply to Centrelink for Youth Allowance as a student, you’ll be assessed as dependent or independent.

The Children’s Court will not provide a date for the hearing of the application until you can show that you have attempted mediation and counselling and they have failed to help you reconcile with your parents. Picture: iStock

Generally, if you’re 22 or older you will be considered independent. As you’re younger, then Centrelink will consider a number of factors, including:

1. You are in a situation where it’s unreasonable to live at home

A social worker must assess there to be an extreme circumstance for you to be unable to live at home, such as, extreme family breakdown, violence or serious risk to your safety and wellbeing. As your parents have separated and live in separate homes, you must meet that criteria for each home.

2. You can support yourself through work

You must work an average of 30 hours each week for at least 18 months in any 2-year period.

As you can see, there are other options available to you to be classed as independent and eligible to receive support from Centrelink.

You should contact Legal Aid for further advice and to see if they can help you.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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