How to Avoid the Pitfalls of Parental Alienation in Family Law

Rejection of a once loved parent by a child following separation is devastating for both the rejected parent and child alike. In the most extreme cases, where the Family Courts determine the ‘favoured parent’ is responsible directly or indirectly for what has been termed ‘parental alienation’, the favoured parent may lose ‘custody’ and have greatly restricted time with the child.

There is a wealth of literature and research on what has been referred to as “Parental Alienation” where a child becomes enmeshed with the experiences and feelings of the favoured parent against the rejected parent to a ‘phobic-like’ state. There are of course often very valid reasons for this such as family violence, however there is no doubt that children are very influenced by the emotions of their parents and pick up on non-verbal cues and great care and caution must be exercised by separating parents to not draw the children into parental conflicts.

The Family Courts, in determining parenting orders, must consider the child’s best interest as the “paramount consideration”. When determining what is in a child’s best interest, the Family Courts often engage experts such as psychologists or psychiatrists to meet with each of the family members, including the children and provide a report. Experts do not determine the outcome of such cases, but their reports greatly assist the judge. Every case differs on its facts and therefore will vary in outcome; and therapy can often be very useful to repair damaged relationships without leading to change in living arrangements for the child.

Clinical psychologist Dr Vincent Papaleo states regarding the most extreme cases of parental alienation:

“When thinking about intervention for cases at the severe end of the alienation continuum, it may well be … the only real hope for change is to physically separate the child and the alienating parent, whilst a reparative experience can be constructed that challenges the previous belief structures free from the intrusion of a distorted negative construction. Containing the child’s anxiety, as opposed to avoiding it, will be fundamental to any treatment. Thorough assessment and understanding is essential[1].” 

It is a common misconception that older children get to choose who they want to live with. There is no actual age defined in the Family Law Act 1975 (Cth) (‘the Act’) where children become empowered with this decision. The Act provides that as one of the additional considerations, judges must consider any wishes expressed by the child, but this evidence is weighed against their maturity and level of understanding in addition to paramount considerations of their safety, even emotional wellbeing. As such, parenting orders can be made for teenagers, sometimes against their otherwise very strongly expressed wishes.

In the case of Goldman [2018] FamCAFC 65 children aged 13 and 11, who had been primarily living with the mother since separation, were ordered to live with the father  because the trial judge found that the mother “has been almost entirely focused on the [husband], on punishing him, on seeing him punished by third parties and on turning the children’s affections away from him. She has caused emotional harm to the children and represents an unacceptable risk to the children of such harm continuing.”

The trial judge in the case of Goldman ordered that the mother not see the children for 4 weeks and then afterwards gradually supervised time. The single expert psychiatrist in that case recommended “further contact should be suspended with her for a minimum of one month and reinstituted in a supervised environment”, although on cross-examination said it should be between 3 and 6 months.

The father appealed on the basis that he believed the exclusion of contact period of 4 weeks was not enough; (he had sought a period of 3 years) and that therapy should have been ordered before time with the mother recommenced. The father lost his appeal as it was determined that the judge was “not obliged to accept all of the evidence of the expert witness”.

While the removal of the child from the favoured parent is at the extreme end of potential consequences; great care must be taken by separating parents to remove their children from the parental conflict wherever possible and reduce anxiety in the children who have very little control over their situation.

Tips to help prevent Parental Alienation during separation

• Avoid speaking about your ex-partner in a negative way in the presence or hearing of the child and discourage others from doing so.
• Avoid social media posts which either overtly or covertly create a negative impression of the child’s other parent. Not only are they potentially damaging to a relationship between parent and child if seen by the child, but social media posts regularly find their way into Court evidence which can be used against you.
• Avoid showing negative emotion at changeover as they may look to you for reassurance and mirror your anxiety and fear.
• Engage in family therapy or counselling early; if possible.
• If the case is in Court, NEVER discuss the details of the case with the children or allow them to see any documents produced for the case. Not only is this harmful to the child but it is likely to backfire on the parent who shared the information with the child. Courts take a very negative view of this.
• NEVER coach the child prior to an interview with a court appointed expert or counsellor, even if well meaning. The expert knows the questions to ask and will want the child’s own words and experiences. It can be very damaging if the child parrots the words of the parent in a family court interview; it can be asserted that the parent is telling the child what to say.
• Do not seek to use the children to ‘punish’ the other parent by restricting time for other reasons, for example financial matters or other personal grievances between the parents.

Accredited Specialist in Family Law Simone Green frequently assists families where the relationship between parent and child has suffered following separation of the parents and is able to assist you with the resolution of your family law matter. Call Streeterlaw’s Family Law team today on 02 8197 0105

[1] Papaleo, V (2019) Something Old, Something New, and Something Borrowed: Considering Parental Alienation from a Different Perspective at p22.