Parental Alienation: The Views Of The Child

Consistent with Australia’s obligations under Article 12 of the United Nations Convention on the Rights of the Child, recent reforms to the Family Law Act aim ensure the views of children are appropriately heard and considered in family law proceedings.

However, how and when the views can be obtained alongside weight afforded to those views continues to provide issues in child resistance cases. Irrespective, even in cases where the views expressed by the child are inconsistent with their otherwise respective best interests, those expressed views can provide insight informing the assessments of risk and capacity.

Obtaining views of the child

The Act at section 60CD(2) provides for how the views of the child are to be expressed:

(2)   The court may inform itself of views expressed by a child:

(a)             by having regard to anything contained in a report given to the court under subsection 62G(2); or

(b)            by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or

(c)            subject to the applicable Rules of Court, by such other means as the court thinks appropriate.

Accordingly, whilst the Court has the ability to employ, and commonly does, various means of ascertaining the child’s views it maintains discretion over which method to use. These means are generally proposed to the Court by agreement between the parties or otherwise decided in the circumstances of the individual cases.

An important factor in obtaining the views of the child, is the timing and context in which those views are obtained. Where an expert report is put before the Court, the evidence contained therein and any views attributed to a child, cannot be fully tested until a final hearing and allows room for parties to dispute the contents.

Additionally, while independent children’s lawyers are required to meet with and obtain the views of children over 5 years of age, the only requirement is that such meeting occur prior to any final orders being made by the Court, whether judicially determined or by consent. It must be asked in some cases whether empowering the views of coerced and resistant children with an independent lawyer, is the best course for assessing their best interests or whether it becomes a roadblock to addressing the cause of the resistance.

Reality testing views

In child resistance cases, where parental coercion of the child has occurred, the views expressed by the child are often disconnected from their experience and lead to parroting of the coercive parent’s narrative. As was the case in Willmore & Menedez [2022] FedCFamC1A 73, when the attitudes and views expressed by the child are tested against reality it can become apparent whether there is a grounding for those attitudes.

However, in reality testing the views where it becomes apparent of a disconnect between the lived experience and the expressed views, it can be determined an emotional dependency between child and coercive parent has formed, as with the case of Goldman v Goldman [2018] FamCACF 65. In Goldman, the children had become emotionally dependent upon the mother following the parental separation which only intensified as the parental dispute progressed, with the mother becoming almost entirely focused on punishing the father and the children mirroring that intent.

Where a disconnect can be established, the resulting weight afforded to the views of the child is greatly diminished where the view is formed that the children are vulnerable to further risk of emotional and psychological harm. In such instances, arguably the parental arrangements should be for a temporary change of care, the implementation of individual therapy and educative parental programs. However, sometimes the Court decides to limit the future distress to the children by allowing them to remain with the coercive parent with whom the emotional dependence has been established. In such cases, it must be asked whether this outcome will result in greater damage to the children long term. There is substantial evidence that the short-term benefit to the child in avoiding the transient distress of removal is outweighed by the long-term damage resulting from further alienation. This long-term damage can include further damage to targeted parent-child relationship, negative psychological and social outcome for child, major depressive disorders, low self-esteem, and insecure attachment styles.

Conclusion

While any expressed views of the child are to be put before the Court, where it is established that those views are disconnected from the reality or lived experience the weight afforded to those views in assisting with a determination of final care arrangements is diminished. The establishment of the disconnect itself, can be useful in the determination of the greater issues of parental capacity and arrangements to protect the emotional and psychological vulnerability of the children in these cases.

If you need assistance with your family law matter, reach out to our team of expert family lawyers here at Dorter Family Lawyers & Mediators.