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    Separating Siblings after Separation – What you should know

    Jan 28, 2022 12:33:31 PM

    It goes without saying that the impact on children of their parent’s separating needs to be managed carefully by the adults around them. Support services such as counselling and family therapy are integral for supporting children at such time. At Frank Law, we have built trusting relationships with counsellors and family therapists who we often refer our clients to for additional emotional support.

    Additionally, the support of sibling relationships can greatly assist children during these difficult times as siblings can provide each other with stability, fun and understanding. For this reason, it is important that parents understand the importance of sibling relationships and how the Court views the separation of siblings after their parents separate.

    The Full Court of the Federal Circuit and Family Court of Australia has demonstrated a very clear and strong reluctance to separate siblings unless it appears, in all the circumstances, to be in their best interests. The separation of siblings after their parents separate is considered a very serious step which could only be justified in compelling circumstances.

    In Cottey and Backe (No 2) [2020] FamCAFC 206, the Full Court (Ainslie-Wallace, Ryan and Aldridge JJ) made the following important remark:

    “It is easy to understand why the court considers sibling relationships so carefully. Experience informs that sibling relationships are likely to be lifelong. In ordinary circumstances, they are children’s most uninterrupted relationships, even more so when the children’s parents separate. Where children have always lived together, after parental separation, careful consideration must be given to the effect on the sibling relationships of the sibling being separated. A decision to deny siblings the opportunity to continue to share developmental experiences by living together and to develop and maintain potentially lifelong ties is a most serious step…”

    In that particular case, the appellant was the child’s stepfather and the respondent was the child’s birth father. The child was living with his mother, stepfather and their son. The child was spending time with his birth father every second weekend and during the school holidays.

    The child’s mother tragically died in a car accident. Following his mother’s death, the child remained living with his stepfather and stepbrother and spent every second weekend and the school holidays with his father until one day his father refused to return him to the stepfather.

    The child’s stepfather applied for parenting Orders in the Federal Circuit and Family Court of Australia seeking for the child be returned to live with him. The child’s stepfather was unsuccessful at the first instance. The child’s stepfather appealed to the Full Court of the Federal Circuit and Family Court of Australia where he was successful.

    On appeal, the Full Court re-exercised discretion and held that it was in the child’s best interests for him to be returned to his stepfather pending a Final Hearing. The Full Court was critical of the father’s parenting capacity and his ability to recognise and establish the child’s relationship with his stepbrother. The Full Court emphasised the importance and strength of the child’s ongoing relationship with his stepbrother.

    On a practical level, it is important to ensure that children are sheltered from any parental conflict at all times. It is difficult to navigate separation as an adult, let alone as a child. The separation of siblings is a strong indicator to children that there is parental conflict and signals to them that they should “choose a side” which is not ideal in any situation and makes establishing future parenting arrangements more difficult in the future.

    If you have a parenting issue, please contact us on (02) 9688 6023 to book a free first consultation with our experienced family lawyers.

    This is not legal advice. 

    Isabella Urso

    Written by Isabella Urso