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Family Law

Separating siblings: family court considerations

By April 19, 2022February 23rd, 2024No Comments

Sometimes parents might think it’s “fair” for one parent to have full time care of one child and the other parent have care of a second child. Or, siblings might be split along gender lines, with a son going to live with Dad and a daughter going to live with Mum.

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Whatever the reasons behind a proposal to split children between separating parents, there is extensive evidence about the potentially negative psychological effects of separating siblings. And our case law therefore supports the idea of keeping siblings living together if at all possible – unless there are good reasons not to.

According to the “children’s best interests” paramountcy in family law, the court has to make orders that take into account the “likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any other child”. This includes full siblings, half siblings and step siblings.

Sometimes, it’s the children who want to live with different parents. But while courts must factor in children’s wishes on where they want to live (given more weight with greater age and maturity), generally speaking the courts tend to avoid the separation of siblings.

Results of separating siblings

The family courts place a lot of significance on sibling relationships during a child’s formative years. It has been shown to have many benefits to a child’s life. And especially in troubling times, siblings banding together can be a protective mechanism. Whether they discuss their concerns or simply provide each other with comfort and reassurance, the sibling relationship usually enhances children’s resilience. 

Separating siblings can have the result of reducing their bond, and therefore fracturing their relationship. The main psychological effects researchers have pinpointed are loneliness, stress and loyalty conflicts.

And the courts believe that the fracture of the family unit when parents separate should not extend to fracturing siblings’ relationships with each other.

Further, it can be very damaging if kids become so embroiled in parental conflict that they have become aligned. If they then move in (or stay living with) the alienating parent, not only does this solidify the alienated child’s alignment. But when they become separated from a sibling, this can also cause the siblings to become alienated from each other as well.

Sometimes, though, the court is faced with no alternative other than to separate siblings—it all depends on the facts of a particular case.

Many factors determine best interests

The court will look at a wide range of factors to determine a child’s best interests. To arrive at a conclusion of what is in the child’s best interests, a composite picture is painted from all the factors. It may be that as it turns out, when all factors are considered, it is actually better for the siblings to be separated.

The circumstances of each matter are assessed on an individual basis, to determine whether or not it would be in the children’s best interests to separate them. All manner of evidence is examined, from affidavit evidence, court-ordered expert reports and psychological reports.

Factors in favour of separating siblings

In some matters, it can be seen as being in the children’s best interests to be separated, when all factors are considered. The following are typical factors that might accumulate to weight in favour of separating siblings.

  • Children’s wishes, especially as they get more mature in age.
  • If the children are widely separated in age and have different needs.
  • If the children truly detest each other.
  • Sometimes, children of mixed race find they have different cultural needs according to their heritages, and these can be best served by the parent with the same heritage.
  • Existing separated relationships may already be settled.
  • Sometimes, circumstances in the parents’ lives mean that it’s not possible for either parent to take all of the kids.
  • Where a child has particular needs that are best met by one parent over the other.
  • Finally, sometimes the proposal for separating siblings is more practical than other proposals.

Any of these factors in isolation may or may not be enough to persuade a court to separate siblings. One particular reason alone, such as “the kids argue”, is unlikely to hold much weight.

Ultimately, the goal has to be child-focused, and not about what’s best for the parents or what the parents wish. Even if you and your ex wholly agree that siblings should be split, if you then ask the court to formalise your parenting arrangements with Consent Orders, the court will assess whether your proposal is in the children’s best interests.  

Do you need assistance with a parenting arrangement, or are looking for advice on sibling separation, please reach out to Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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