Campi and Ferrin [2022] FedCFamC2F 1621 (24 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:
[9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.
[38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):
(a)
The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four-day family therapy RIFT model;
(b)
The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
(c)
The lack of material before the Court relating to the nature of the proposed intensive family therapy;
(d)
The lack of any independent evaluation of the proposed intensive family therapy;
(e)
The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
(f)
The Family Report writer, appointed under section 62G of the Family Law Act 1975 (Cth) to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
(g)
The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
Carter and Wilson [2023] FedCFamC1A 9 (10 February 2023) – Federal Circuit and Family Court of Australia (Division 1)
The full court (McClelland DCJ, Bennett & Campton JJ) observed that ‘controversially… the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act’ [6]. The Full Court observed:
[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
[85] In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
[87] Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
[88] The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
Frangoulis and Xennon [2019] FamCA 103 (28 February 2019) – Family Court of Australia
Berman J considered the father’s application for reunification therapy with his child:
[49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.
[50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.
[51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.
Khoury and Ganem [2021] FCCA 869 (1 April 2021) – Federal Circuit Court of Australia
Among other orders the father sought orders for reunification therapy in circumstances where the mother argued it was not in the child’s best interests to see the father because of controlling behaviours, disrespect of women and extreme religious beliefs [98]. The father denies allegations.[99] Per Bender J:
[100] As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
[101] [expert witnesses] both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
[102] Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69 (28 May 2012) – Family Court of Australia (Full Court)
In circumstances where it was alleged that the father had ‘alienated’ the children from the father the Full Court (Bryant CJ, Faulks DCJ & Ainslie-Wallace J) commented:
[47] ‘… it is clear to us that the term “alienation” does not enjoy one accepted meaning.’
Ralton and Ralton [2017] FamCAFC 182; (7 September 2017) – Family Court of Australia (Full Court)
Parental alienation was considered in circumstances where the mother appealed against parenting orders on the basis that orders had been made with insufficient consideration of the alleged family violence of the father and the expert witnesses were biased (the Full Court (Bryant CJ, Strickland & Aldridge JJ).
[187] The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests. (quoting from the primary judgment at [70])
[192] … There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
In the Matter Of: Re K Appeal [1994] FamCA 21; (1994) FLC 92-461 (10 March 1994) – Family Court of Australia
The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided. The husband, grandparents and paternal aunt appealed against those orders.
[95] In this regard we lay stress upon the words "intractable conflict". There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the Court similarly have the assistance of such a person to present the child's point of view.
[96] If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the Court: see Law Council of Australia (1989) "Law Council Submission on Role of Separate Representatives" Vol. 4 No. 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the Court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an "honest broker" as between the child and or the parents.
Campi and Ferrin [2022] FedCFamC2F 1621 (24 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:
[9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.
[38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):
(a)
The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four-day family therapy RIFT model;
(b)
The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
(c)
The lack of material before the Court relating to the nature of the proposed intensive family therapy;
(d)
The lack of any independent evaluation of the proposed intensive family therapy;
(e)
The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
(f)
The Family Report writer, appointed under section 62G of the Family Law Act 1975 (Cth) to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
(g)
The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
Carter and Wilson [2023] FedCFamC1A 9 (10 February 2023) – Federal Circuit and Family Court of Australia (Division 1)
The full court (McClelland DCJ, Bennett & Campton JJ) observed that ‘controversially… the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act’ [6]. The Full Court observed:
[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
[85] In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
[87] Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
[88] The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
Frangoulis and Xennon [2019] FamCA 103 (28 February 2019) – Family Court of Australia
Berman J considered the father’s application for reunification therapy with his child:
[49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.
[50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.
[51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.
Khoury and Ganem [2021] FCCA 869 (1 April 2021) – Federal Circuit Court of Australia
Among other orders the father sought orders for reunification therapy in circumstances where the mother argued it was not in the child’s best interests to see the father because of controlling behaviours, disrespect of women and extreme religious beliefs [98]. The father denies allegations.[99] Per Bender J:
[100] As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
[101] [expert witnesses] both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
[102] Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69 (28 May 2012) – Family Court of Australia (Full Court)
In circumstances where it was alleged that the father had ‘alienated’ the children from the father the Full Court (Bryant CJ, Faulks DCJ & Ainslie-Wallace J) commented:
[47] ‘… it is clear to us that the term “alienation” does not enjoy one accepted meaning.’
Ralton and Ralton [2017] FamCAFC 182; (7 September 2017) – Family Court of Australia (Full Court)
Parental alienation was considered in circumstances where the mother appealed against parenting orders on the basis that orders had been made with insufficient consideration of the alleged family violence of the father and the expert witnesses were biased (the Full Court (Bryant CJ, Strickland & Aldridge JJ).
[187] The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests. (quoting from the primary judgment at [70])
[192] … There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
In the Matter Of: Re K Appeal [1994] FamCA 21; (1994) FLC 92-461 (10 March 1994) – Family Court of Australia
The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided. The husband, grandparents and paternal aunt appealed against those orders.
[95] In this regard we lay stress upon the words "intractable conflict". There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the Court similarly have the assistance of such a person to present the child's point of view.
[96] If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the Court: see Law Council of Australia (1989) "Law Council Submission on Role of Separate Representatives" Vol. 4 No. 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the Court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an "honest broker" as between the child and or the parents.