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In general, the court will focus on the behaviour and conduct of children and their parents and carers rather than attempting to label behaviour and then take the label into account in determining appropriate orders.
The family law system has a range of tools to support an informed assessment of claims about child or parental conduct, through legislation, case law, judicial discretion and access to and testing of evidence from expert witnesses.
When a child does not wish to see one or both parents, this is one of the situations in which it is recommended that an independent children’s lawyer should be appointed in a family law matter to assess the reasons for this (Re K Appeal ).
In some matters, the phrase ‘parental alienation’ is raised by parties. There is considerable variation in opinion on what this phrase means. The phrase ‘is employed by some professionals to describe parental conduct in separated families where the children are, apparently without good reason, reluctant or resistant to spending time with one parent’. While the United Nations Special Rapporteur on Violence Against Women has described parental alienation as a ‘pseudo-concept’, their Report states that ‘broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father’.
The phrase is not used or defined in any Australian legislation; however family courts have recognised:
•
the phrase ‘parental alienation’ does not have one accepted meaning - McGregor and McGregor ,
•
the conduct of one parent that obstructs contact of a child with another parent must be considered in the context in which it occurs – Carter and Wilson .
The phrase ‘parental alienation’ may be misused in family law matters as a tool to either minimise the court’s focus on the actions of an abusive parent, or to mischaracterise the non-abusive parent’s efforts to protect the child. For example, the Queensland Women’s Safety and Justice Taskforce, in its enquiry into coercive control and domestic and family violence in Queensland, found that ‘mothers who act protectively in the best interests of their children to limit the contact their children have with a perpetrator-father are often accused of parental alienation within the family law system’. This tactic can penalise family violence victims for alleging abuse and uphold impunity for perpetrators of family violence.
The lack of a consistent understanding of the phrase ‘parental alienation’ can lead to inappropriate outcomes in circumstances where the behaviour or rejection of a parent might be understandable, appropriate and / or justified – for example, one parent acting to protect a child from an abusive parent, or a child refusing contact because they are scared of the parent.
Therefore, in order to understand the parent’s or child’s behaviour, it is essential to consider the behaviour in context. For example, is one parent seeking to protect their child from the abuse of another parent? Is the child influenced by other factors such as their developmental stage; prolonged absence of a parent; normal adjustment difficulties with family transition; loyalty conflicts; and sibling influences?. Is the parent’s behaviour part of a pattern of abuse?
Where one parent actively tries to turn a child against the other parent, for no legitimate reason, this behaviour may have significant negative impacts on the child’s development and mental health, as well as the mental health of the parent who has not had contact with the child. However, ordering a child to have contact with an abusive parent may also have damaging effects on the child.
In circumstances where a child does not wish to see one of both parents, ‘reunification therapy’ may be raised by a party/legal representative or expert witness. However, this term appears to mean a range of different things when raised in family law matters. Furthermore, there is a lack of empirical support for the effectiveness of some therapies that are described as ‘reunification therapy’. Notably ‘some teenagers have reported adverse effects of programs they attended, and there is evidence that there is danger to some who are placed with abusive parents and prevented from having contact with … other family members who could monitor their well-being’.
Parental alienation syndrome (PAS) is not a recognised psychiatric disorder in the scientific community (and was removed from the International Classification of Diseases by the World Health Organization in 2020.)
In general, the court will focus on the behaviour and conduct of children and their parents and carers rather than attempting to label behaviour and then take the label into account in determining appropriate orders.
The family law system has a range of tools to support an informed assessment of claims about child or parental conduct, through legislation, case law, judicial discretion and access to and testing of evidence from expert witnesses.
When a child does not wish to see one or both parents, this is one of the situations in which it is recommended that an independent children’s lawyer should be appointed in a family law matter to assess the reasons for this (Re K Appeal ).
In some matters, the phrase ‘parental alienation’ is raised by parties. There is considerable variation in opinion on what this phrase means. The phrase ‘is employed by some professionals to describe parental conduct in separated families where the children are, apparently without good reason, reluctant or resistant to spending time with one parent’. While the United Nations Special Rapporteur on Violence Against Women has described parental alienation as a ‘pseudo-concept’, their Report states that ‘broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father’.
The phrase is not used or defined in any Australian legislation; however family courts have recognised:
•
the phrase ‘parental alienation’ does not have one accepted meaning - McGregor and McGregor ,
•
the conduct of one parent that obstructs contact of a child with another parent must be considered in the context in which it occurs – Carter and Wilson .
The phrase ‘parental alienation’ may be misused in family law matters as a tool to either minimise the court’s focus on the actions of an abusive parent, or to mischaracterise the non-abusive parent’s efforts to protect the child. For example, the Queensland Women’s Safety and Justice Taskforce, in its enquiry into coercive control and domestic and family violence in Queensland, found that ‘mothers who act protectively in the best interests of their children to limit the contact their children have with a perpetrator-father are often accused of parental alienation within the family law system’. This tactic can penalise family violence victims for alleging abuse and uphold impunity for perpetrators of family violence.
The lack of a consistent understanding of the phrase ‘parental alienation’ can lead to inappropriate outcomes in circumstances where the behaviour or rejection of a parent might be understandable, appropriate and / or justified – for example, one parent acting to protect a child from an abusive parent, or a child refusing contact because they are scared of the parent.
Therefore, in order to understand the parent’s or child’s behaviour, it is essential to consider the behaviour in context. For example, is one parent seeking to protect their child from the abuse of another parent? Is the child influenced by other factors such as their developmental stage; prolonged absence of a parent; normal adjustment difficulties with family transition; loyalty conflicts; and sibling influences?. Is the parent’s behaviour part of a pattern of abuse?
Where one parent actively tries to turn a child against the other parent, for no legitimate reason, this behaviour may have significant negative impacts on the child’s development and mental health, as well as the mental health of the parent who has not had contact with the child. However, ordering a child to have contact with an abusive parent may also have damaging effects on the child.
In circumstances where a child does not wish to see one of both parents, ‘reunification therapy’ may be raised by a party/legal representative or expert witness. However, this term appears to mean a range of different things when raised in family law matters. Furthermore, there is a lack of empirical support for the effectiveness of some therapies that are described as ‘reunification therapy’. Notably ‘some teenagers have reported adverse effects of programs they attended, and there is evidence that there is danger to some who are placed with abusive parents and prevented from having contact with … other family members who could monitor their well-being’.
Parental alienation syndrome (PAS) is not a recognised psychiatric disorder in the scientific community (and was removed from the International Classification of Diseases by the World Health Organization in 2020.)