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Alienation of a Child and separation of Siblings

The newly named Federal Circuit Court of Australia recently dealt with a highly complex family law matter in which a radical solution was imposed to protect the relationship of a child with his mother and brother in the case cited as Martel and Martel [2013] FCCA 525. 

Facts of the Case

  • This was a parenting matter which involved two boys aged 12 and 10 years respectively.
  • There was a history of domestic violence and high levels of discord between the parents.
  • The Mother had ended the relationship with the Father in 2011 but remained in the home with him and the children.
  •  In December 2011 the Mother left the family home and the children with their Father after the Father confronted her about seeing another man and brought the children to witness the event. 
  • The Mother wanted the children to spend time with her and the Father.
  • The Judge found (among other things) that the Father:
    •  Had inappropriately involved the children in the parents fights over the Mother departing the relationship;
    •  Had inappropriately expressed his view to the children that the Mother had lied, cheated on him and betrayed him, and by extension the family and the children;
    • Had influenced the children, and in particular the elder child to the extent that they adopted a very negative view of their mother;
    • Had been untruthful and vengeful and or exaggerated events to construct the Mother as an inadequate parent who had been physically abusive and violent towards the children;
    • Was not capable of considering the children’s needs ahead of his own;
    • Was not acting in accordance with his parental responsibilities.
  • 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.
  • The elder boy was highly critical of his Mother.  He expressed that he wished to live with his Father and had gone to great lengths to avoid spending time with his Mother.  He had on two occasions run away and on the first occasion went to the lengths of calling the police claiming his Mother was going to kidnap him and his brother.
  • Both boys attended the same school and spent limited time in the presence of the other at school as well as one afternoon a week after school.  The children were in different year levels at school and as such whether they in fact spent any significant time together is questionable.  In any event both boys expressed that they missed one another and had previously had a close relationship.

The Court made Final Orders such that:

  • The Mother was to have sole parental responsibility of the children;
  • the children will live with their Mother for a period of four months in quarantine from their Father;
  • after the period of quarantine, the children would then spend time with their Father during school terms each alternate weekend or until Tuesday if the Monday is a Public Holiday and for half of all school holidays.  

The Final Orders imposed by the Court in their inclusion of a quarantine period were drastic by usual standards.  Furthermore the Orders went against the express wishes of the elder child who at the time was 12 years old. 
Many people believe that when a child reached 12 years old they are ‘allowed to make their own decision’ in respect of their living with and care arrangements.  This is in fact a misconception.  The Court has jurisdiction to make Orders with respect of the children’s live-with and care arrangements until they are 18 years old (although their views are given increasing weight as they grow older and many would argue that the practicality of enforcing orders against the will of older children may make it futile to make those orders except in rare circumstances).  So what does the Court consider when assessing children’s matters if a child of 12 years does not get the final say?
In determining Martel and Martel the Court applied the "best interests of the children" principle which is the expression used to sum up the legal imperative that the Court must make Orders which are in the best interests of the child(ren).   The “Best interests off the child” is obviously a very wide consideration and the Family Law Act 1975 (as amended) gives the Court further guidelines when making their consideration including consideration of:

  • the matters set out in s.60CC:
    • the benefit to the child of having a meaningful relationship with both of the child's parents; and
    • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  • the matters set out in s.60B:
    • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
    • protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
    • ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
    • ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
    • The principles underlying these objects are that (except when it is or would be contrary to a child's best interests); and
    • (except when it is or would be contrary to a child's best interests)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
    • (except when it is or would be contrary to a child's best interests)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
    • (except when it is or would be contrary to a child's best interests) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
    • (except when it is or would be contrary to a child's best interests) parents should agree about the future parenting of their children; and
    • (except when it is or would be contrary to a child's best interests) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
  • the matters set out in s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made,

The relevance of the presumption of equal shared parental responsibility where it applies is that the Court is obliged to consider making an Order (if such an order is consistent with the best interests of the child and reasonably practicable for the child) to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order (if such an order is consistent with the best interests of the child and reasonably practicable for the child) for the child to spend substantial and significant time with each of the parents.
The presumption of equal shared parental responsibility does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence.  The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In this matter the Judge considered the following matters (in addition to the usual requirements) with respect to the live-with and care arrangements of the children:

  • There was a high level of discord between the parents to the extent that the Ju8dge mad findings with respect of threats made by the Father against the Mother;
  • The current situation had led to an alarming level of alienation of the elder child from his Mother and if the current situation continued to exist, he would be further or perhaps permanently alienated from his Mother;
  • That the younger child had not been able to spend significant time with his Father due to the parents’ level of discord;
  • The children’s previously close relationship and their current lack of significant contact due to their parents (in particular their Father’s inability to facilitate their ongoing relationship;
  • the importance of both siblings residing with each other; and
  • The children’s expression that they wished to spend more time with one another and missed one another specifically stating that

In reaching such conclusion, I have taken into account … the distinct possibility of the loss of [the children’s] 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.”
Martel and Martel is an example of the Court disregarding the views of the child in favour of adopting orders that the Court determined to be in the interests of both of the children subject to the proceedings.  Confirming once again that the Court must always make Orders that will facilitate what the Court determines to be in the best interests of the child(ren).  Consideration of this will always require close consideration of the individual circumstances of the matter.
Parents sometimes ask about the possibility as to the separation of siblings.  The issue can arise for many reasons such as one sibling is older than the other and may have expressed a wish to reside in one parent’s household on a permanent basis, or one parent may wish to relocate and view a division of the children as the most “fair” option. 
Many factors must be considered to determine whether a separation of siblings is in their best interests.  In most instances it is likely that a Court would find that it is preferable for siblings to spend equal time with both parents at the same times or live together with one parent and spend time with the other parent.  Generally speaking as far as the Court is concerned the aforementioned living arrangements are most likely to promote a meaningful relationship between both parents and their children, and be best for the children’s psychological wellbeing and development.  Ultimately, matters of this nature are determined on a case by case basis but; if it a separation of siblings is being considered it would have to be with safeguards in place to protect the children’s continuing relationship.

This Article is a commentary on the case of Martel and Martel and does not constitute legal advice.

If you are going through proceedings for parenting orders you should consider seeking legal advice as to your proposed arrangements.

S 60CA Family Law Act 1975.

Martel and Martel [2013] FCCA 525, [463].