Can Siblings Be Separated?

We all know the basic premise of The Parent Trap. The parents divorce shortly after the birth of their twin daughters, and they decide to take one twin each, never to see each again. The twins meet at summer camp and embark on a hilarious mission to reunite their parents.

Obviously, the Family Court of Australia does not make parenting decisions like they do in the movies, but can the court make parenting orders which separate siblings?

The short answer is yes. The court may make parenting orders in which siblings are separated or ‘divided’ between their parents or other caregivers. However, the long answer is that the Family Court will only make parenting orders which it considers are in the best interests of the children, thus, siblings will only be separated if the court is satisfied that it is in their bests interests to do so.

As a general rule, the Family Court has exhibited significant reluctance to order the separation of siblings, and it has been stated that the cases in which the best interests of the children require that siblings be separated are “very rare”. However, in “special circumstances” the separation of siblings may be found to be in the best interest of the children, for example where:

  • the children detest each other;
  • the children are of mixed race and have difficult cultural needs which would be best served by remaining with the parent of the same heritage;
  • the children are widely separated in age;
  • where a child has particular needs that are best met by one parent over the other; or
  • neither parent has the means alone to permit them to take care of all the children.

Some Cases

In custody proceedings for two children, an 8-year-old son and 5-year-old daughter, the trial judge gave custody of the son to the husband and the daughter to the wife. Both parties appealed.

On appeal, the court overturned the trial judge’s order and gave sole custody to the husband. The court provided the following reasons for the decision:

  • the siblings had never been under the separate control of one parent;
  • they had grown up together;
  • they attended the same school and it could be expected that the siblings would support each other in their school days;
  • the older son would be able to assist the younger sister with her schoolwork; and
  • the father had been the primary guardian of both the children since separation, which was nearly half of the daughter’s life.

In all the circumstances, the court concluded that the ‘objective case’ was for the children to remain together and in this case the husband was the appropriate parent to receive full custody.

This case concerned custody proceedings for two children, a 7-year-old son and a 6-year-old daughter. The trial judge had held that both children should remain in the care of the mother, the father appealed seeking that he be granted custody of the son and the mother have custody of the daughter.

Relevantly, both the children in this case were mixed race; the father being Sudanese and a Muslim, and the mother being English and a Christian. In the circumstances, the court found that it was in the best interests of the son for him to be brought up in Sudan with his father, where he could eventually takeover his father’s business. However, the court noted that the daughter would be “less adaptable” in Sudan than the son.

The court did accept that the children would experience “immediate unhappiness” in being parted but they took a long view and considered that the separation was in the best interests of the children in the long term.

This case concerned final parenting orders for three children, aged 13, 12 and 10. Interim parenting orders provided for the children to live with their mother and spend time with their father each alternate weekend from Friday to Wednesday. However, the oldest child expressed a wish that she wished to live with her father and spent time with her mother.

The court accepted that it was the oldest child’s best interests to live with the father, but the noted that the outcome must also be in the best interests of the two younger children. Ultimately, the court accepted that the oldest child would be able to maintain a thriving and meaningful relationship with her sisters if she lived with the father, and it was in the best interest of the siblings to be separated noting the following:

  • The parenting orders would provide her the younger sisters to have every second weekend at the father’s house and the oldest child would spent the other alternate weekend at the mothers house, so the siblings would still have 10 nights out of every fortnight together;
  • The oldest child was currently at the same school as the middle child, and they would be able to maintain their relationship at school;
  • If the oldest child was forced to live with her mother, there was a risk that her unhappiness may flow into anger which would not be beneficial to her relationship with her sisters; and
  • The two younger children would be able to share the burden of moving between households together and would not be left to fend for themselves.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.