Skip to main content

International family law case sees siblings separated

By February 25, 2016No Comments

By Gianna Huesch

A recent court decision in Malaysia has seen siblings separated in a controversial family law case that is described as “tearing a family apart”. Federal Court judges in the case interviewed the two children aged 8 and 11 before ruling on the custody dispute.

Lawyers said the court would usually attempt to keep the children together after interviewing the minors, as well as going through reports from experts and the social welfare department. In most cases, it is sought to maintain that siblings remain together when parents divorce. But in this case, the country’s apex court varied the existing custody order of the High Court by granting primary custody of one daughter to the mother and one daughter to the father.

The judging panel’s chairman said the substitute order was made “as the children were settled in their present environment”, with consideration also given to the father’s character.

However, critics have claimed the judges have rewarded the father for allegedly abducting one daughter from the lawful custody of the mother.

One lawyer said that it was “heart-wrenching” to see the siblings being separated, but that in Malaysia, judges interviewing children was accepted practice: “The Law Reform Act and the Convention on the Rights of the Child allow for children to have a say in where they are placed when their parents divorce, and that is only right,” she said.

However, another Malaysian lawyer noted, “It is traumatic for children to go to court, to be made to choose, and the environment in which they were forced to make that major decision in their lives. Who is going to counsel them now? To help them deal with guilt (for not choosing the other parent), and other sorts of fall-out from the court’s decision?”

In contrast, in Australia judges do not often interview children to ask them which parent they wish to live with. Instead, judges usually make decisions based on evidence from parents, together with reports from professionals such as social workers, child psychologists or child psychiatrists, who typically spend many hours speaking with the children and assessing the best interests of the child. This is because it is acknowledged that apart from potentially causing trauma to the child, judges are experts in law, and are not child psychologists or experts in children’s welfare.

Here, the views of the children in custody disputes are able to be taken into account, but what weight is given to their views, if any weight is given at all, forms only a small part of a range of factors in consideration.

Are you separated and need assistance with establishing legal custody arrangements for your children? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400, so that we can discuss your specific situation and needs and obtain the best possible outcome for you and your kids.



Call Now Button