Life’s Not Like the Parent Trap: Can the Family Court Separate Siblings?

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.

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.