Attwood Marshall Lawyers Family Lawyer Sarah Caruso explains parental alienation and also gives an update on the current NSW-QLD border restrictions and how this has impacted separated families that are trying to navigate parenting arrangements.
The legal implications of parental alienation
Parental alienation has been studied by psychologists and the social sciences for decades. There have been significant clinical and research developments in the field of parent–child resist-refuse dynamics commonly called “parental alienation.”
Parental alienation is when one parent (also referred to as the alienating parent) influences a child to turn against or reject their other parent without appropriate justification.
It has been reported that this issue affects approximately 19 per cent of parents that are going through separation and divorce. In high conflict cases, reports suggest the figure may be as high as 40 per cent.
When one parent is alienating another, it is often fuelled by fighting over children and engaging in defaming or denigrating conduct. One parent may seek to control and isolate the child from the other parent, particularly in situations where there is high conflict between parents with high levels of anger, hostility, and distrust. Parental alienation is also common where one or both parents may exhibit signs of a personality disorder or mental illness. This may make it more difficult for parents to communicate, co-parent and make any decisions mutually about their child.
When there is a loss of a relationship between parent and child, it can lead to the child having their own emotional and physical ill health. The child may display divorce specific psychological disturbance as a result of the alienation and denigration of a once loved parent. They may experience grief for the loss of a parent they no longer can see or maintain that relationship with. A child as a result of parental alienation may also develop low self-esteem, anxiety, self-hatred, and hypervigilance (Telford & Telford (No. 3) [2020] FamCA 755).
There are many examples of how parental alienation has played out in Court, including:
- Seabrook v Seabrook [2018] FCCA 2311: In this case, the parents had two teenage children and the mother talked negatively of the father to the children, and controlled every aspect of the children’s lives. The mother was diagnosed with a personality disorder. The children were conditioned by the mother about their father and expressed wishes not to see him. Expert evidence determined the children were too far along in a development for a change of residence to the father. The Court ultimately decided that the children live with their mother and spend time with their father in accordance with the children’s wishes.
- Bunt v Charring (No 3) [2019] FCCA 3452: In this case, the parents had one child 8 years old, and the mother had relocated twice with the child to be further away from the father. The Family Report described the mother as having no understanding of the importance of the father having a role in the child’s life. The mother was unable to promote a relationship between the child and the father. The Court ordered that the child live with the father and spend one weekend each month with the mother.
The above examples confirm the need for separated parents who have children to attend dispute resolution on parenting matters as soon as possible after separation. Early intervention and family counselling may be the key to resolving matters effectively and reducing the risk of parental alienation, conflict, and psychological damage to the child.
Where a resolution cannot be reached at mediation, parents should not delay in making an Application to Court as failing to resolve parenting matters at the earliest opportunity could mean extended delay and greater alienation for parents and their children. This invariably leads to a breakdown in relationships and potential lack of contact between parents and children. (Responding to severe parent child rejection cases, Family Court Review, April 2020)
Determining what is in the best interests of children
Parenting Orders are a useful tool that can help reduce potential for conflict when deciding on matters such as living arrangements, and how much time children may spend with each parent.
Parenting proceedings in the Family Court provide a number of principles that must be considered when making a Parenting Order.
Under section 60CA of the Family Law Act the paramount consideration for the Court when making Parenting Orders is what is in the “best interests” of the child.
In determining what is in the best interests of the child, the Court must consider:
- Primary Considerations
- Children having a meaningful relationship with both their parents.
- The need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect, or family violence. (This consideration is given greater weight than the need for children to have meaningful relationships with both parents).
- Additional Considerations
- Views expressed by the children.
- The nature of the relationship between children and parents (including grandparents and other relatives).
- Likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents.
- Maturity, gender, lifestyle and background of the children and parents.
- Parental attitude toward child and parental responsibilities.
A “meaningful” relationship is not defined in the Act and is subjective and depends on the circumstances of the case. Nevertheless, the Oxford dictionary defines it as “serious and important.”
Furthermore, the Court must apply a presumption when making Parenting Orders, that it is in a child’s best interest to have equal shared parental responsibility for the child. Parental responsibility includes long term decisions relating to a child’s education and health.
When parties separate and wish to formalise parenting arrangements, both parties must attend dispute resolution (mediation) to resolve parenting matters.
Where dispute resolution fails, parties can make an Application for Parenting Orders to the Federal Circuit Court.
Keeping the peace during COVID-19 – how to handle the lockdowns
Navigating border restrictions
COVID-19 has led to some of the strictest border restrictions we have seen since the pandemic hit Australia’s shores. Government mandated lockdowns have meant that there are more parents staying at home with their children. This has caused confusion where there are parenting arrangements in place where children usually go between parents. Border arrangements are primarily a matter for each state and territory government, and there is no national approach to how parents should deal with cross-border parenting matters.
The Queensland government has stated that for QLD-NSW border zone residents, entry into Queensland is allowed to fulfil obligations relating to shared parenting or child contact; or for children under 18 years of age who do not live in the same household as their biological parent or siblings, or one of their parents or siblings, to continue existing arrangements for access to, and contact between, parents and children and siblings.
In some circumstances, border restrictions have encouraged the “live with” parent to control how and when the other parent spends time with their child. The likelihood of some parents alienating children under the cover of COVID-19 appears greater and we have had many enquiries from distressed clients who are eager to resolve parenting matters so that their relationships with their children are not disturbed or impacted as a result of COVID-19 lockdown directives.
Urgent Applications
As a recognition of the pressure placed on parents during the pandemic, the Family Court announced a National COVID-19 List which deals with urgent applications. This list hears matters to do with allegations of family violence, supervised contact arrangements and where border restrictions create difficulties for parents to share care of children.
To be eligible for the National COVID-19 List, an applicant must satisfy all the following criteria:
- Their application has been filed as a direct result of, or if indirect, has a significant connection to, the COVID-19 pandemic;
- The matter is urgent;
- The application must be accompanied by an affidavit that addresses all criteria;
- You must have made reasonable attempts to resolve the dispute prior to making an application, if it was safe to do so;
- The matter is able to be dealt with using electronic means (such as video conferencing or by telephone).
Attwood Marshall Lawyers can help parents resolve family disputes
Our family lawyers have appointments available during lockdown. Should you have a matter concerning separation and parenting, our team are ready to assist and are available at all our offices located at Kingscliff, Coolangatta, Robina Town Centre and Brisbane. As we cannot currently travel to our Sydney or Melbourne offices, we continue to offer telephone or video consultations for all our clients in these locations to ensure there is no delay to resolving your matter. Attwood Marshall Lawyers can assist in arranging dispute resolution, mediation, and parenting applications to the Family Court at the earliest opportunity.
For help with a family law related matter, contact Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or call our 24/7 phone line on 1800 621 071.
You can also book an appointment directly using our online booking app. Click here to book an appointment today.
Read more:
Recently Separated? What you need to consider next
Domestic and Family Violence Prevention Month – May 2021: A call for change – Part 1
Government responds to our call for urgent amendment to Queensland Border Exemptions (UPDATED)
