It is widely accepted and acknowledged in the Family Law Act 1975 and Articles 9(3) and 19 of the Hague Convention of the Rights of the Child, that to the extent possible and with reverence to risk, it is generally in the best interests of the child to maintain a relationship with both parents. However, it is increasingly common that children may become resistant to maintain contact with one parent during a parental separation for a variety of reasons including normal preferences, affinity, alignments, enmeshment, valid estrangement, coercion by one parent against the other, and hybrid cases.
Where the child persistently expresses strong, negative feelings and beliefs that appear to be irrational, distorted, or exaggerated and are significantly disproportionate to the child’s actual experience with a rejected parent, parental alienation may be a factor, but what is it?
Defining alienation
Parental alienation is a term which is often used where children have been resistant to maintain contact with one of their parents and the interpretation is that the children have been or are manipulated by the other parent. Often this is exhibited through a variety of behaviours, including the child parroting a rehearsed narrative which mimics the allegations of the preferred parent as displayed in the case of Syms & Syms [2021] FamCAFC 38, hostility towards and refusal to speak to the rejected parent as seen in Karlsson & Karlsson [2022] FedCFamC2F 1604, and strongly aligned with the preferred parent as noted in Willmore & Menendez [2022] FedCFamC1A 73.
In simple terms, it is coercion by one parent (the ‘preferred’ parent) of the child against the other parent, amounting to family abuse and perpetrated against the child often resulting in long-term mental health issues. However, it is often not recognised as abuse in the context of Court proceedings and where the perpetrated places the focus on the rejected parent and their behaviours.
Types/Stages of alienation
There are generally 3 stages/types of parental alienation; mild, moderate and severe.
With mild cases, the coercion exhibited over the child is commonly treatable through the parent(s) engaging in educative programs, family therapy and the institution of a shared parenting arrangement.
For moderate case, the intervention into the coercion can be successfully achieved through a shared parenting arrangement with clear boundary setting, family therapy, and individual therapy for both the parents and children. It is important in these cases to limit the parental conflict.
Whereas for the most severe cases, experts in this field say treatment/reunification requires the children to be removed from the coercive parent for a minimum of 3 months, alongside intensive individual therapy.
In practice
The case of Bondelmonte v Bondelmonte [2017] HCA 8, is arguably demonstrative of an instance of the coercive tactics utilised by the ‘preferred’ parents over the child being subtle and reliant on making the children believe they have the decision-making responsibility. This belief was strengthened by the father in the case to the point where interim orders were made that following the children’s return to Australia they were permitted to reside in their own residence opposed to residing with the mother or family members.
Given the nature of the type of coercion exhibited over the children, the ability to obtain the child’s views in such cases is limited and often discounted. As the legal framework and practice procedures continue to develop to give effect to the Convention on the Rights of the Child, the views of the child in family law matters is a necessary element to be obtained prior to a final determination being made. However, the weight afforded to the views of children varies due to a number of factors, and is somewhat discounted where there is a disconnect between the child’s views and their lived experience.
The allegation of parental alienation Is rarely made in a vacuum, and is usually a response to the ‘preferred’ parent’s allegations of family violence or child abuse. Given the nature of the allegations, the allegation should not be considered lightly and must be scrutinised before it is made as such allegations can cause the limitation of shared parenting arrangements due to the requirement of the Court to promote safety.
It is often the case with child resistance cases that the behaviour of the rejected parent is that which is scrutinised as the reasoning for the resistance by the child. However, if orders are made by the Court where the children are left in the primary care of the coercive parent, this often leads to long-term mental health issues suffered by the children, such as: further damage to targeted parent-child relationship; negative psychological and social outcomes for child; major depressive disorders; low self-esteem; and insecure attachment styles.
Conclusion
The Family Law Act 1975 has been amended recently with the focus on the promotion of safety to the child, parents and carers. These changes included the removal of the presumption of equal shared care to allow for flexibility when dealing with unique circumstances and measures needed for the promotion of safety. The case law and academic literature in the area continues to develop as a result of legislative changes and increasing societal understanding.
Addressing allegations of parental alienation and otherwise navigating the complexities of child resistance cases requires knowledge of the particular circumstances and context. If you are involved in a separation involving alienation, reach out to our team of expert family lawyers here at Dorter Family Lawyers & Mediators.