Understanding Parental Alienation in Australian Family Law
Definition and Controversy
The phrase “parental alienation” is employed by some to describe parental conduct in separated families where children are, apparently without good reason, reluctant or resistant to spending time with one parent. The United Nations Special Rapporteur on Violence Against Women has described parental alienation as a “pseudo-concept,” stating that it broadly refers to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.
Australian Courts have recognised that the phrase “parental alienation” does not have one accepted meaning (McGregor and McGregor (2012) 47 Fam LR 498) and that the conduct of one parent that obstructs contact of a child with another parent must be considered in the context in which it occurs (Carter and Wilson [2023] FedCFamC1A 9).
Impact on Child and Parental Mental Health
Where one parent actively tries to turn a child against the other parent, for no legitimate reason, this behaviour may have significant negative impacts on the child’s development and mental health, as well as the mental health of the parent who has not had contact with the child. However, ordering a child to have contact with an abusive parent may also have damaging effects on the child. Sometimes when enquiries are made, the rejection of a parent might be understandable, appropriate, and/or justified – for example, one parent acting to protect a child from an abusive parent, or a child refusing contact because they are scared of the parent.
Legal Context and Challenges
The Queensland Women’s Safety and Justice Taskforce, in its enquiry into coercive control and domestic and family violence in Queensland, found that perpetrators of domestic and family violence and coercive control often use family law proceedings and outcomes as a mechanism to continue to exert power and control over their victims. This undermines efforts to protect victims, including children, and hold perpetrators to account.
Community perceptions of the presumption of shared parental responsibility in the Family Law Act 1975 (Cth) often lead victims of domestic and family violence to believe they are compelled to offer equal shared care to abusive fathers. Victims are frightened that the Court will view them as alienating the children from their father if they try to protectively limit contact. This potentially exposes children to significant harm and means victims are subject to ongoing power and control by the perpetrator during periods of contact over the children.
Court’s Approach to Child and Parental Conduct
The Family Law Act mandates Courts to consider what is in the best interests of the child on a case-by-case basis. This approach involves examining the conduct and behaviour of the parties and their children, rather than applying simplistic labels such as “parental alienation.” The Courts have a range of tools to support an informed assessment of claims about child or parental conduct, including legislation, case law, judicial discretion, and expert witness evidence. Generally, cases involving parental alienation will still go through the first step of most family law matters and start with mediation to resolve the issues.
Family Reports and Reunification Therapy
If mediation does not resolve the issue, it may be raised in Court. The Court may then involve a Court Child Expert to assess the child and determine whether some sort of alienation is occurring, as it is not always an easy task to determine whether rejection of a parent is justified or the result of parental alienation.
The Court Child Expert may then write a family report. A Family Report is an independent family assessment that assists the parents and the Court in making decisions. In preparing the report, the Child Court Expert (sometimes referred to as a Family Consultant) considers the children’s experiences and development, the family circumstances, and other issues relevant to the case. The Child Court Expert makes recommendations for arrangements that will best meet the children’s future care, welfare, and developmental needs.
In circumstances where a child does not wish to see one or both parents, ‘reunification therapy’ may be raised by a party/legal representative or expert witness. There is a lack of empirical support for the effectiveness of some therapies that are described as ‘reunification therapy’. Notably, some teenagers have reported adverse effects of programs they attended, and there is evidence that there is danger to some who are placed with abusive parents and prevented from having contact with other family members who could monitor their well-being.
Independent Children’s Lawyer and Parental Alienation
When a child does not wish to see one or both parents, it is often recommended that an independent children’s lawyer be appointed to help the Court to assess the reasons for this reluctance. This recommendation is supported by the case Re K Appeal [1994] FamCA 21; (1994) FLC 92-461.
Case Studies
Reddin & Bickett [2022] FedCFamC1F 910
This was a parenting matter involving children aged 8 and 6. There was significant conflict between the parents, with each parent accusing the other of serious misconduct, including allegations of sexual abuse and family violence. The Court noted that almost every independent expert involved had formed a negative view of both parents due to their level of conflict and their enmeshment of the children in their dispute. At the time of the hearing, the father had not spent meaningful time with the children for over a year due to the mother’s delay in engaging supervision services. Both parents sought sole parental responsibility, but the independent children’s lawyer proposed either shared care or alternate weekends with the father. The Court ultimately found that both parents contributed to the children’s alienation and ordered week about time, emphasising the importance of supporting the children’s relationship with both parents.
Berry & Andrews [2022] FedCFamC1A 120
This case involved parenting arrangements for a 12-year-old girl. After a trial, orders were made for the parents to have equal shared parental responsibility and for the child to live with the mother and spend time with the father. However, the mother subsequently absconded with the child, resulting in the father not seeing the child for six months.
When considering a contravention application bought by the father, the Judge found that the mother’s actions detrimental to the child’s relationship with the father and ordered that the father have sole parental responsibility and that the child live with the father, and after a moratorium on contact with the mother, the child was to spend five weekends of supervised time with the mother, following which the child was to spend time the mother every alternate weekend from Friday afternoon until Sunday afternoon.
The appeal focused on procedural fairness, particularly regarding the use of an article on parental alienation without prior notice to the mother. The appeal was ultimately dismissed, with the Court upholding the importance of maintaining the child’s meaningful relationship with both parents.
Cardus v Lavrick [2020] FamCA 579
In the case of Cardus v Lavrick, the father of the child submitted that the mother had alienated him from his teenage daughter. The parents had had a casual intimate relationship, which resulted in the conception of the child. There was a family violence intervention order in place and the child lived with the mother, while the father had an intermittent and inconsistent relationship with the child. By the time of the hearing, the father had not seen the child for several years. The Court disagreed that any alienation was occurring and determined that any challenges to the relationship with his daughter were the result of his own behaviour towards the child, including his unreliability, only engaging with the child on his own terms, inappropriate and sexualised comments he had made towards the mother, his lack of interest and engagement with the child’s medical conditions including her autism and irritable bowel syndrome, his refusal to adhere to her diet, and his unsolicited communication with the child. Additionally, the Court found there was evidence the mother had attempted to foster a relationship between the child and her father. The findings by medical and mental health professionals indicated no evidence of parental alienation. The Court ordered the mother to have sole responsibility of the child, the child live with the mother, and the father have no contact with the child.
Masih & El Saeid [2020] FamCAFC 152
In Masih & El Saeid, the Court dealt with a situation where children had refused to see their father for two years despite interim consent orders for equal time. The father alleged parental alienation, and a Child Expert recommended that the father have sole parental responsibility and the children live with him. Despite this independent evidence, the primary judge ordered the children to live with the mother and gradually increase time with the father. The Full Court found that the primary judge failed to adequately explain why the single expert’s recommendations were not followed, leading to the case being remitted for rehearing.
Goldman [2018] FamCAFC 65
In Goldman, the Court addressed the issue of a mother turning the children’s affections away from the father, resulting in emotional harm. The primary judge ordered that the children live with the father, with the mother’s time being supervised. The father appealed for a longer moratorium on the mother’s contact, but the Full Court dismissed the appeal, emphasising the balance between the children’s need for stability and the impact of not seeing their mother.
Conclusion
These cases illustrate the complexities and challenges of addressing parental alienation within the Australian legal framework. Courts focus on the best interests of the child, considering the behaviour and conduct of each parent rather than relying on labels. If you are experiencing similar issues or need legal advice, it is crucial to seek professional guidance to navigate these intricate matters effectively.
If you are facing a family law dispute and need assistance understanding your rights and responsibilities, please contact us to schedule a consultation. Our experienced team is here to support you through every step of the process. Whether you are dealing with allegations of parental alienation, navigating custody arrangements, or seeking to protect your child’s best interests, we provide practical legal guidance tailored to your unique situation. Reach out to us today to ensure your voice is heard and your family’s wellbeing is prioritised.
