Children and Parental Alienation

WHAT’S THE USE OF MY PARENTING ORDERS?

Most parents who separate are able to work out flexible arrangements for their children. However, in situations where there is conflict and the parents cannot agree, the Court will formalise parenting orders that are binding and enforceable.

Parenting Orders take into account who the children will live with; who will make the major decisions about the children’s care including education; and how the children will communicate with parents, grandparents and any people who play a significant role in the children’s lives.

To avoid conflict and emotional confrontations between separated partners, the Court may make orders for changeover before and after school so that the children do not have to be a focal point of the conflict.

Even with these strategies, things can go wrong.

My Ex-partner keeps withholding the children.

One parent may organise activities in the other’s parent’s time.

One parent may repeatedly say that the children are ill or too tired to spend time with the other parent.

This can go on until the non-resident parent is totally isolated from their children.

Does your child refuse to go to your ex-partner?

We have all seen children who are tired or distracted and cry because they have to get in the car and visit a relative.

It may happen when your children go to spend time with your ex-partner. This does not mean you are trying to alienate the children from their parent.

The children may just hate change and want to finish their game.

They may be teenagers who just want to do the opposite to any request from a parent.

What is Parental Alienation?

Parental alienation is extreme. It refers to when a parent deliberately tries to destroy the parent/child relationship.

It can lead to extreme orders and change of residence of the children.

Family Law and Parental Alienation

The Family Law Act 1974 underlines the importance of children having a meaningful relationship with both parents as long as there is no violence that would put the children at risk.

When the Court makes Parenting Orders they consider what is best for the children.

One of the considerations is to ensure that parents do not denigrate each other or each other’s families in the presence of the children.

Alienation will occur when the parent not only denigrates the other parent but totally supplants the relationship of the other parent with the child or children.

This may be done overtly or more subtly such as re-inventing family occasions.

A mother may say that the father was not present at the child’s birth and that he was never there for important events like birthdays.

If the child is too young to remember then they may accept what they are told. Gradually their perception of their parents will alter.

More sinister may be allegations of abuse which will have to considered and will lead to investigations and separation. The other parent may only be able to spend supervised time with the child further creating questions about what is “wrong” with that parent.

Can You Enforce Parenting Orders?

The case of Ralton & Ralton [2017] FamCAFC 182 demonstrates how seriously the Courts take the issue of one parent alienating the other.

When making parenting orders the Court must consider what is in the best interests of the child. As part of this determination, the Court looks at the time the children will spend with each parent to nurture a meaningful relationship. If it is not practical for the children to spend equal time with both parents, the Court will then look at substantial and significant time such as each alternate weekend and one night in the other alternate week after school.

In the Ralton case the Full Court dismissed an appeal by the mother who wanted to ensure that the children spent no time with the father. The mother breached the Court Orders so that the children did not spend time with the father for over 2 years and were in fact fearful of the father.

The Court’s Decision

The Court made orders that the children would live with the father instead of the mother. The Father would also have sole parental responsibility for the children. Although the father was to keep the mother informed of significant decisions, the father had sole responsibility in enrolling the children at a particular school and the children were not to spend time with the mother for 6 months.

The Court determined that this was the only way to restore the children’s relationship with their father and to allow them to have a meaningful relationship with both parents. After the 6 months, the children spent alternate weekends and half school holidays with the mother. The children were accordingly given the chance to spend time with their father without the anxiety and risk of psychological harm that the mother’s continued alienating behaviour had prompted.

Recent Decision

The issue of parental alienation and the concept of Parental Alienation Syndrome was recently reviewed in an appeal in the matter of Andrews & Berry [2022] FedCFamC2F7.

The judge at the hearing referred to an article about Parental Alienation Syndrome (PAS). This is a term originally coined by an American psychiatrist Richard Gardner. It has not been accepted by the Diagnostic and Statistical Manual of Mental Disorders (DSMMS) as a classified disorder and remains controversial. It refers to the effect of parental alienation behaviour on the psychological health and wellbeing of the child.

In the Andrews & Berry case, the mother appealed the decision that the father have sole parental responsibility and for the child to live with him. The Full Court found that the judge should not have referred to the article about PAS as it was not in evidence and the parties therefore had not been afforded the opportunity to make submissions or cross-examine on it.

However, even though this was an error of law, the Full Court still found that the judge’s original decision was correct based on the facts of the case where the mother had engaged in alienating behaviours. The health and well-being of the child must remain paramount when making parenting orders and determining what is in the best interests of the child.

What can You do?

It is important that both parents comply with Court Orders. It is also important to keep a balanced perspective when difficulties arise and one parent is unable to get a child to changeover.

However, when there is a constant and persistent breach of Court Orders by one parent; when that parent is repeatedly denigrating you to the child or children; when the child is becoming confused by a parent re-inventing the past and ghosting the other parent; and this is having an impact on the child’s psychological wellbeing; then it is time to act.

This may involve seeking help from school counsellors and trying to amicably deter the parent from these behaviours.

If the situation cannot be resolved, then you will need to seek legal assistance. The last thing anyone wants is to involve the children in parental conflict but it is essential to remove them from behaviours which have long-term negative effects on their emotional and psychological wellbeing.

If you are concerned about parental alienation issues with your former partner please contact us so that we can discuss the best way forward for you.

This article is for information purposes only and is not legal advice.