Taking Parental Alienation to Court: How To Prove It
Parental alienation is the term usually used to describe when one parent deliberately damages the child’s relationship with the other parent.
It is not uncommon during high-tension divorce and separations between the child’s parents, for some children to form certain views and attitudes about one of their parents. The attitudes may contribute to some type of estrangement occurring between the child and that parent. However, in some instances, the other parent contributes to the estrangement by encouraging and facilitating the behaviour, which can lead to parental alienation.
Dr Richard Gardener, an American Child Psychiatrist first conceptualised parental alienation in 1985, where he identified that the behaviour involves the actions of one parent turning their child or children against the other parent. Dr Gardener identified three (3) stages in parental alienation:
1. Mild Parental Alienation:
In these cases, although the child exhibits signs of parental alienation, the child still enjoys spending time with the alienated parent when the child is alone with that parent. Children who fall into this category are often receptive to visitation and are most likely to express affection for the alienated parent.
In these cases the alienator parent realises that distancing the child from the other parent is not in the child’s best interest. However, the alienator parent still seeks to strengthen his or her position through subtle programming.
2. Moderate Parental Alienation:
Occurs in cases where the child resists spending time with the alienated parent. The child harbours resentment towards that parent when they are alone together, however, the child also tends to stop their criticism of the targeted parent when they are alone with that parent. Younger children in this case usually require the lead of an older sibling to maintain their position.
In moderate cases the alienator parent usually wages an intense campaign of deprecation of the other parent, in an attempt to alienate the child from their former partner. Usually, parents who fall into the “moderate alienator” category, were likely to be good parents prior to the separation.
In these cases, Court ordered therapy is usually warranted.
3. Severe Parental Alienation
A child’s rejection can be the result of parental alienation and can result in a child refusing to have any contact with the alienated parent (such as hiding or running away so as to not spend time with that parent). In some cases, severely alienated kids may settle down somewhat if required to stay with the targeted parent over an extended period.
The ex partner who falls into the severe category of parental alienation is often paranoid, and their paranoia often involves projection. The projection creates a pathway for the alienator parent to see him or herself as the innocent victim. In these cases, the alienator parent usually does not respond well to reason or logic and will exaggerate or twist almost anything the child communicates in order to support their position.
In these cases, intervention is often not sufficient and a disruption in time between the child and the alienator parent may be required.
Overall, it is common for parental alienation to result in the child feeling negatively to one parent and for those feelings to be unjustified and by reason of manipulation of the other parent. In any event, the Australian Court system has recognised the effects of parental alienation and addressed such matters, as detailed below.
Parental alienation, the Federal Circuit and Family Court
Presently, the term ‘parental alienation’ is not recognised or referred to in Family Law Act 1975 (Cth). However, the Federal Circuit and Family Court of Australia has made reference to and made appropriate orders in cases involving parental alienation.
Currently, parental alienation is not in itself a crime. However, cases involving parental alienation have resulted in dire consequences for the alienator parent.
Ultimately, the Court will make orders that are in the best interests of the children concerned and will decide each case based on its own individual circumstances and merits. In determining a child’s best interests, the Court will usually have regard to section 60CC of the Family Law Act 1975 (Cth). This provides that when dealing with children in family law proceedings, the Court must place primary considerations on the benefits of a child having a meaningful relationship with both of their parents. However, this is to be weighed against the need to protect the child from any possible harm and form of child abuse. This family violence can include psychological harm or emotional abuse in the form of parental alienation.
Examples of Parental Alienation
Listed below are some case examples brought before Australian Courts, illustrating vital issues the Court considers regarding parental alienation:
Example 1:
Goldman v Goldman [2018] FamCACF 65: This case involved two children aged thirteen (13) and eleven (11). The children remained living with the mother from separation onwards. A single expert report was prepared in the matter after the therapist met with the parties and their children. The expert concluded that the children should not continue to live with the mother as their relationship was not healthy.
Having regard to the evidence and material provided by the expert, the Court was able to reach a finding that the mother had been focused on turning the children away from their father. The Court also concluded that such actions were causing emotional harm to the children and posing an ongoing risk that would be unacceptable in the circumstances. Ultimately, an order was made for the children to live with the father and spend supervised time with the mother.
Example 2:
McGregor v McGregor [2012] FamCAFC 69: This case involved an appeal brought by the father involving three children aged fourteen (14), nine (9) and eight (8). The case was highly contentious and involved the mother applying for a personal protection order against the father. In this case, following separation, the mother left the family home and the children continued to live with their father. In relation to this matter the Court initially:
- Made an order for the children to live with the mother;
- Made an order that the former matrimonial home be sold and for a sum of $15,000 to be held in trust to provide money for counselling between the children and their mother;
- Found that the father had alienated the children from their mother as a result of him demeaning the mother in front of the children, by either encouraging them to use or not stopping them from using, similarly demeaning remarks on her;
- Heard evidence brought by the mother, including accounts of witnesses claiming that the father conducted himself aggressively towards the mother (both physically and verbally) and that he had caused the children to behave in a similar way;
- Found that the children’s language to and conduct towards the mother “can only reflect the language of the husband and their repetition in front of the wife by the children is an example of the children aping their father’s conduct”; and
- Dismissed the father’s accusations that the mother had a drinking problem and noted that to counter the allegation, the mother had undergone drug and alcohol screens, all of which had proved negative.
Ultimately the appeal was upheld, which was largely due to procedural fairness issues. The matter was remitted for hearing by another federal magistrate. However, when the matter was brought before the Court again in 2013, the court made orders for the children to live with the mother and spend time with he father, and for such time to commence no earlier than six (6) months from the date of the orders. The time was also only to commence upon the father having satisfactorily completed an intensive parenting treatment program and men’s behaviour course.
Example 3:
Ward v Ward (No 2) [2016] FamCAFC 890: This case involved two children aged fourteen (14) and sixteen (16). The mother commenced proceedings in the Family Court as the parents failed to reach agreement with respect to the parenting arrangements concerning their children. The parents’ relationship involved high conflict and the matter was highly contentious. This conflict was further fuelled by both parents having re-partnered after separation.
This case is unique as both children chose to align themselves with a different parent. The younger child was aligned with the father and older with the mother. The Court recognised that each household posed a level of risk and that taking the children’s wishes into account may prove complex. Ultimately, the children were given the choice to express who they wanted to live with. Failing the children making a choice, the children were ordered to live with the parent that they aligned themselves with and spend time with the other parent, as long as the children spent each Monday and Wednesday after school together.
These cases illustrate how the Court recognises parental alienation where the conduct of one or both parents exhibit the term’s features.
Evidentiary material considered in Parental Alienation cases
In circumstances where parental alienation allegations are brought before the Court, the Court will have regard to the evidence brought before it to make the necessary findings and appropriate orders. Accordingly, it is imperative that relevant evidence is presented to the Court to assist the Court in identifying the matters relating to the parental alienation.
Researchers in this area outline a framework of matters to be considered in parental alienation cases. These matters have been referred to in Australian Courts, such as in the case of McGregor detailed above. In McGregor the Court referred to the research of Fidler and Bala (Fidler and Bala, Family Law Review, Vol. 48, No. 1, January 2010) who outline the main aspects of parental alienation as:
- The persistent and not occasional, rejection or denigration of a parent that reaches the level of a campaign;
- An unidentified (unreasonable) or irrational rejection by the child;
- Rejection by a child that is a partial result of the alienating parent’s influence, as in “a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person, or persons, with whom they formerly enjoyed normal relations or with whom they would normally develop affection relations”;
- A change from a previously good relationship where the child shares a warm and healthy attachment, or would have been expected to develop a good relationship; and
- A possibility that the aversion may also be applied to others (such as other family members) and not only to parents. This recognition that a child once had a secure attachment to the now-rejected parent, notwithstanding personality or parenting flaws, is of particular relevance for accurate assessment and considering what remedies are appropriate.
The alienated parent must have regard to the above and collate the relevant evidence to support his or her position. The type of evidence that can be presented to assist the Court with cases of parental alienation and addressing the above points, can include:
1. Affidavit evidence
The alienated parent preparing and providing an affidavit (which is akin to a statement provided by each parent to the Court) detailing the matters surrounding the alienating behaviour.
For example, the alienated parent may detail instances of systematic and ongoing denigration exhibited against him or her by the other parent in the presence of the children.
The alienated parent may also provide copies of emails, text messages, screenshots of social media activity and other documents and/or evidence to the Court, to show the frequency of the disparaging remarks and prove that they are not isolated incidents.
2. Evidence provided by an expert witness
An independent Assessment by a third-party expert, such as Psychologists, Counsellors, Social Workers or other mental health professionals, may also assist. The Court may make orders requiring the parties and/or their children to attend upon a family consultant (usually a psychologist) for the purposes of family therapy and for that therapy to be reportable to the Court. The expert engaged will then report on his or her findings and help guide the Court in respect of the alienation that is occurring within the family.
However, in relation to this point, it is important to note that this will vary on a case-by-case basis, and in some instances, it can cause more harm to engage a therapist to speak with the children.
His Honour, Justice Altobelli, delivered a paper on this issue entitled “when a child rejects a parent”. His Honour highlights that:
“In Australia, the usual processes for ascertaining the views of the child i.e. the family or expert report, and the Independent Children’s Lawyer becomes, for the alienated child, potential vehicle of harm… The risk is that giving an alienated child a voice allows them to “buy in” to this potentially harmful process, or to “take sides”, and to engage in the “tribal welfare” that so typically occurs in these cases. The great risk of giving a voice to the alienated child is that it consolidates and validates in their own minds their own negative convictions, and gives them a platform. In any event… even when the views of the alienated child are ascertained, their inaccurate reasoning and loose logic is hardly the sort of view that is credible, or would be given weight to”
3. Independent third-party evidence
Third-party evidence from witnesses or other institutions may also assist, such as reports from the child’s school.
Parental alienation and child abuse – psychological and emotional harm
Although each parental alienation case is assessed individually, international researchers and the Australian Court have identified features arising in such cases where an unacceptable risk of harm, in the form of psychological and emotional harm, is posed to the children. This in turn contradicts the principles of the Family Law Act 1975 (Cth) with respect to the children having a meaningful relationship between both of their parents.
Research in this area has identified that in some instances, intervention may assist the outcome of children involved in parental alienation cases. Therefore, it is common for Courts to make orders involving a change of residence for the children and therapeutic counselling between the children and alienator parent, so as to mitigate any associated risks when the children start spending time with the alienator parent again.
Unfortunately, it has also been found that in some severe cases, therapeutic intervention might not be sufficient and a disruption in time between the children and the alienator parent might be required to disrupt any systematic and habitual alienation to protect the child from any risks of psychological and emotional harm.
Parental alienation, society and Australian Family Law
Parental alienation cases have received much attention recently in the literature, and in the media. They have also been touched on by the Courts in Australia, America and Canada.
It is vital to acknowledge, that even in high conflict separations, it is common for children to long for and seek contact with both parents. Therefore, it is not unusual for parental alienation to have received such attention in literature and the media, given the effects of parental alienation on the family and children.
There are already societal changes occurring attempting to bring light to this issue, such as the involvement and education provided by several men’s rights activists groups. These groups address cases involving a mother alienating the children from their father as a tool for revenge in the separation or in instances where the father has left the family to re-partner.
Legal changes are also occurring, such as by reference to parental alienation and research on this topic in case law. Some researchers are highlighting important factors of parental alienation, such as how at times it is used as a tool and smokescreen to cover an abusive man’s behaviour by alienating the children from the mother.
Whether the alienator parent is the mother or the father, both the legal discourse and academic literature are taking steps to unpack this complex area and to provide education in relation to the matters arising from parental alienation. This is further progressed by the provision and availability of relevant parenting courses to help parents navigate this complex area.
Mediation and family dispute resolution are other tools that can be utilised to assist parties with learning about and managing parental alienation. This is important to note, as the effect of parental alienation can be long-lasting on children without appropriate intervention.
Education in relation to self-help remedies may also assist, as it is important for parents to have the correct tools to work through such matters. Parents require assistance in identifying the behaviour, in acknowledging its occurrence and effect on children, on remaining calm, not engaging, focusing on their relationship with the child (such as by taking the child away to watch a movie or engage in an activity together), in continuing to engage in positive communication with the child, and with identifying and engaging professional services for early intervention where possible (such as counselling for the child and/or the parent).
Legal professionals are here to help you
Parental alienation remains a complex issue, and a family lawyer would be best placed to assist parties in navigating the family law system and issues related to parental alienation. This would enable the required intervention to take place and would assist the parties in identifying an appropriate path forward.
Doolan Wagner Family Lawyers offer specialist family law advice and are based in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.
About the Authors:
Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist holding honours degrees in economics and law. She is also a Collaboratively trained Family Lawyer, a Family Dispute Resolution Practitioner, and a Parenting Coordinator. Lisa has over 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters; working for the majority of that time in Sydney’s CBD as well as on Sydney’s lower North Shore and Northern Beaches.
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Sara Arnold is an Associate at Doolan Wagner Family Lawyers. Sara holds a Bachelor of Laws and a Bachelor of Business Management as well as recently completing her Master of Applied Law (Family Law).
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Disclaimer:
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.
