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When older siblings are separated from younger half siblings

Will the court order time?

In a recent matter of Harry & Barndon the Federal Circuit Court made orders for an older sibling (then 18 years of age) to spend time with his younger half sibling (then 8 years of age).

The Court, when determining the application, confirmed that the concluding words of subsection 64B(2) that:

“The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).”

Although the Family Law Act, by design is “attuned” to disputes between parents, the Court has the power to “make such parenting orders as it thinks proper”.  This includes a parenting order that a child spend time with extended members of the child’s family, including siblings and grandparents.

In determining the Application made by the older sibling, the court had regard to the best interest of the younger child, through the criteria set out in s60CC and s60B of the Family Law Act.  The Court found that s60B(2)(e) required the Court to bear in mind the child’s right to enjoy his culture (which may be assisted by spending time with his siblings who are at least as to half through their mother from the same heritage).

The Court ordered time with the older sibling on each third Sunday for a period of 6 hours with time being extended to overnight time on the older sibling turning 19 years of age.

The main issue that arose in this case was the hatred by the birth father of the younger sibling Mr Barndon of the birth father of the older sibling Mr Prentiss.  The Court described the hatred as “an intensity bordering on mania”.

The Court found that although they found no present danger to the younger child coming into contact with Mr Prentiss, if an order was made permitting the younger child to come into contact with Mr Prentiss, the relationship between the older sibling and the younger siblings’ father would deteriorate significantly.

The Court ordered that the younger child not be brought into contact with Mr Prentiss.

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