In a recent decision of the Federal Circuit Court in the case of Martel and Martel [2013] FCCA 525, the judge altered an informal parenting arrangement agreed by the parents. The agreement saw a 12 year old boy living with his father and a 10 year old boy living with his mother.

The facts of the case are as follows:

  • This was a parenting matter which involved two boys aged 12 and 10 years respectively. 
  • In February 2012, interim orders had been made by the Court which provided that both children were to live with their mother and spend time with their father. 
  • However, these orders were not being observed by the parties and the 12 year old boy was, at the time of the most recent hearing, living with his father and not spending time with his mother. 
  • Conversely, the 10 year old boy was living with his mother and not spending time with his father. 
  • Interestingly, both boys attended the same school and so the only time they spent in the presence of the other was at school.  (Whether in fact this was any form of significant time at all is questionable, given the realities of the modern school day and children in different years at school).
  • The Court, in determining this matter, applied the "best interests of the children" principle, which involved consideration of the following matters (in addition to the usual requirements):
    • in the case of the elder child, if the current situation continued to exist, he would be alienated from his mother;
    • the importance of both siblings residing with each other; and
    • whether the current situation should continue whereby one child was alienated from the other parent given the fact that they resided with either the mother or the father respectively. 
  • In a decision which altered the informal arrangement reached between the parents, the judge made the following orders:
    • that the children will live with their mother for a period of quarantine from their father until October 2013;
    • that after the period of quarantine, the children would then spend time with their father in what would be considered to be a conventional manner. 
  • The judge in reaching this decision was quite critical of the father in putting his own needs above those of the elder child in effecting the informal arrangement, which saw the elder child living with him and spending no time with his mother or brother (apart from time spent at school).
  • The judge stated with respect to the orders made including the order that the children being quarantined from their father for a period of time:

“In reaching such conclusion, I have taken into account that there is a considerable risk for both children, particularly with regard to the elder child’s relationship with his mother and ultimately the younger child’s relationship with his father, but I conclude that there is the potential of a very significant advantage for both children as to their relationship in the long term with both parents and more significantly with each other and that such risk is warranted.  To contemplate any other proposal entails an even greater risk for both children and the distinct possibility of the loss of their relationship with each other which the family report writer found to be very significant for them both in the short term and long term.  If that relationship is not permitted to exist, there are likely to be significant adverse psychological effects for the children which had been outlined by the family report writer and which are likely to lead to both boys being troubled in their later teens and early adulthood.”

We are sometimes asked by parents about the possibility as to the separation of siblings, as one sibling is older than the other and may have expressed a wish to reside in the other parent’s household on a permanent basis. 

Many factors must be considered to determine whether a separation of siblings is in the best interests of the children. Ultimately, matters of this nature are determined on a case by case basis.

This case, however, provides guidance as to the Court’s view when it is confronted with a situation whereby siblings have been separated by their parents through informal agreement in contravention with existing court orders; in that it is preferable for siblings to live together with one parent and spend time with the other parent.  This living arrangement as far as the Court is concerned is most likely to promote a meaningful relationship between both parents and their children, and is best for their children’s psychological wellbeing and development.