Parental Alienation: Parenting Arrangements where there is Coercive Control

The paramount consideration when the Court makes parenting orders is the best interests of the child, assessed through the considerations detailed at section 60CC of the Act. However, in child resistance cases where there is evidence of parental coercion or manipulation of the child, the Court’s ability to rely on the consideration at section 60CC is limited.

Evidence of parental manipulation of the children, can be indicative of that parent’s reduced capacity to provide for the developmental needs of the children and otherwise as a significant roadblock to effective co-parenting and joint decision-making.

Capacity

In cases such as Goldman v Goldman [2018] FamCACF 65 and Kinsella v Kinsella (2007), the manipulation of the children by one parent arising from a desire to ‘punish’ the other parent poses an identifiable risk to the children’s future wellbeing. This identifiable risk to the children in both cases was compounded by the recognised neglect by the manipulative parent of the children’s psychological needs.

As can often be the case where the children begin to reach adolescence, the common view is that the child will ‘vote with their feet’, however children are not decision-makers. Each parent must have the skillset to make decisions in the best interests of the children, opposed to acquiescing to their wishes in order to retain the care of the children. Where orders are in place this capacity can take the form of explaining to the children that if they do not spend the ordered time with the other parent, it is the Court’s orders that are being broken and the parent that will face consequences.

In cases where one parent has demonstrated coercion of the children via acquiescence or placing decision-making responsibility onto the children, joint decision-making in respect of issues such as health and education cannot be in the children’s best interests. Whilst important for parents to hear their children and discuss decisions, it is not the child’s role to make the decision.

In mild to moderate cases, early intervention through therapy, individual and family, alongside parental educative programs can allow for the parent to understand their role in the dynamic and where the coercion has been unintentional allow introspection. However, depending on the severity of the coercion, the level of insight required for the parent to address their underlying issues can take time which can cause children to age out of requiring parental care.

As with the case of Dworak & Watts (No 2) [2023] FedCFamC1F 13, the capacity of a parent to meet the needs of the child can require a gradual increase to sever the child’s emotional dependency on that parent. Alienation and alienation syndrome are not recognised on the DSM-V, however, they are commonly recognised as being a disconnect within the coercive parent’s mentality which prevents insight to best interests principles in favour of seeking to ‘punish’ the other parent, albeit treatable with early intervention. A parent’s capacity is not something which can be easily assessed, however the demonstrated capacity and risks posed provide informative indicators to the Court.

Decision-Making

Whilst the legislation has been updated to remove the presumption of equal shared parental responsibility, it remains common for parties to co-parent during and after their matters, if doing so is in the best interests of the children and fosters the child’s healthy relationship with both parents. However, the Court has a duty to promote the safety of all parties, and must consider before making parenting orders what arrangements will promote the safety of the children. 

The ability to make joint decisions in the best interests of the children is limited where a parent has manufactured the rejection of the other parent by the child. As commonly understood, the intentional manipulation and coercion of the child by one parent against the other is ‘a declaration of war’ in a parenting matter, and accordingly forms a roadblock to decision-making processes. 

This roadblock intensifies as the continuation of the coercion continues as the rejected parent becomes increasingly desperate to spend time with the child and the preferred parent takes control of the decision-making process. Such circumstances limit the ability of the preferred parent to have insight into what decisions are required, where they are often neglectful of the child’s needs in favour of their own vendetta, as demonstrated in the cases of Sanders & Sanders [2022] FedCFamC1F 213 and Dworak & Watts (No 2).

Where such circumstances occur, the sole decision-making by one parent which is not contingent on time with the children allows for the promotion of the best interests of the children. Such arrangement additionally promotes the best interests of the child by removing a sometimes transactional arrangement between decisions and time.

Conclusion

Parenting arrangements and parental capacity are affected by numerous factors, not least of which is insight into best interests principles. In child resistance cases, the limitation of the insight by one parent can lead to situations where the needs of the children are not being met due to one parent manufacturing decision-making processes to favour their narrative. Once established this can provide a transactional relationship with the rejected parent, where decision-making responsibility for long-term issues can be eroded and such responsibility be placed upon the child. However, with early intervention or otherwise the separation of decision-making from care arrangement such transactional relationships are reduced to promote the overall safety of the child.

Navigating parenting arrangements where there is a pattern of coercive control involving the complexities of child resistance requires knowledge of the particular circumstances and context. If you are involved in a separation involving alienation and coercive control of the children by one parent, reach out to our team of expert family lawyers here at Dorter Family Lawyers & Mediators.

If you would like any assistance with your family law matter, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us here or by phone on (02) 9929 8840.