Should the Australian Family Court consider sanctions against parents who continually flout court orders and compromise their children’s relationship with one of their parents?
A Family Court judge in Canada threatens sanctions against an alienating parent, stating that this parent’s continued alienation may cause the court to reconsider whether the children should remain in their custody.
Alienated parents overwhelmingly say “yes”. However, the more common experience of alienated parents is that family law in Australia goes ‘MIA’ when a parent contravenes orders or alienates a child.
In my own reviews of family reports, few consultants recommend sanctions such as change of residence or even instituting shared care if a parent does not follow their recommendations or if a child’ s behavior towards a targeted or alienated parent does not change.
I suggest that one of the reasons why this is the case is that there are still family consultants and indeed elements of the Family Court that do not accept parental alienation as a plausible hypothesis. This is in stark contrast to allegations of sexual abuse, or family violence for which the Family Law Act 1975 requires specific action. Yet, international research on Parental Alienation suggests that it is at least as harmful to children as sexual abuse, and family violence.
Unfortunately, there is little or no relief from Section 60 of the Family Law Act 1975. Section 60CA Part VII of the Act requires that the Court must regard the best interests of a child as the paramount consideration. In particular, Section 60CC considers that it is beneficial for a child to have a meaningful relationship with both parents. However, precedence (McCall & Clark (2009) FLC 93-405) allows for the interpretation of a meaningful relationship based on the nature of the parent-child relationship at the date of the hearing. Here in lies support for the infamous ‘status quo’ that alienating parents are all too keen to establish for obvious reasons.
Furthermore, this precedent allows Section 60CC to consider the evidence at the date of the hearing (as distinct from the status of the parent-child relationship at the date of the hearing) to determine how, the child’s best interests can be formulated to ensure the child has a meaningful relationship with both parents.
Whilst this interpretation may offer some relief, there is nothing in Section 60 that specifically requires that interference with or compromise of a relationship between a child and a parent is not in the child’s best interest. This suggests that an alienating parent can determine the relationship for the court to consider-unless a family consultant recommends otherwise. However, there is nothing specifically in the act that requires a family consultant or the court to take an adverse view of alienation.
Imagine what legal, social and psychological acceptance Parental Alienation must have occurred within the Canadian social and legal system for this Canadian judge to take such a stand for an alienated child and be prepared to sanction an alienating parent! And without legislative changes!
What would it take for Australia to reach a similar understanding and acceptance that the deliberate compromise or rupture of a child’s relationship with a loving parent is child abuse and needs to be treated as seriously as family violence?
We are getting better but we still have a long way to go before we have social let alone legislative changes that at least hold alienating parents to account.
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Thanks for sharing this Stan. Should alienating parents be punished?
Society has laws that punish rapists, child molesters, thieves etc etc; the laws are there as a deterrent, and deserving offenders are jailed so that they can serve their debt to society. Not so the parental alienators. They receive, at most, a slap to the wrist. Repeated court appearances and huge legal fees are not a deterrent, neither is receiving a bollocking from the judge.
Should the alienated parent hang in there for long enough , in some cases the children are finally placed with the parent who is more likely to facilitate a relationship with Both parents, in the “best interests of the children”- often this is, ironically, the alienated parent..
Having laws that punish the alienators would, most certainly, curtail most alienation. If there are serious consequences for the offender (community service, fines, and jail time for the worst offenders) , the incentive to carry on with this damaging behavior would be removed.
Who would benefit? The children, of course. The damage done to children, and also the alienated parent, by parental alienation, is horrendous. The flow on effect on family, friends, relationships is very damaging. There are no winners, only losers (except for those extracting huge fees from the process)
The courts would benefit too, less overloaded court rolls would take the pressure off the judges to concentrate on more deserving cases and take the strain off the court system.. win win..
What seems to infuriate Alienated Parents the most is the absence of any sanctions and therefore the implicit validation and acceptance of the morally repugnant and downright abusive behaviour of an alienating parent. The result of this is that alienated children then grow up to believe that this type of behaviour and the manner in which people can be treated is acceptable.
When family law leaves an alienated child in the care of an alienating parent society is effectively giving permission to, and morally validating a model of parenting and code of behaviour that virtually every parent and person would find abusive and unacceptable. Is family law therefore deciding upon a family system the most parents would find repulsive and unacceptable?
However, punishing Alienating parents is not really what Alienated parents want. What alienated parents want are effective and immediate sanctions to ensure compliance with orders and recommendations that would allow their children to have a meaningful relationship with both parents.
I have only ever seen in a few family reports recommendations for sanctions against a parent that are in actual fact beneficial recommendations to the child. Such sanctions and recommendations are typically a reversal of residence arrangements or a re-weighting of shared care in favour of a targeted or alienated parent.
Anyone who believes that the Family Court response to alienation is to to get the child to spend more time with the Targeted parent has been misled by the Legal system. The vast majority of decisions and cases are unreported by the Court. The Court selects which cases it want to publish just like the judge selects which bits of info to take into consideration just like the lawyer decides which bits of information it gives to the Court. In 2007 the Family Court came out of a long period of time of being shy about its decisions in Wang and Dennison. This whole sad story had 4 easily found published cases the most encompassing one in December 2009. This case is still being referred to today by the Family Court and would make an excellent case study of what is wrong with the system including the Psychologist and how to fix it. This case should be given out to every participant in the system to study and learn ie each parent counsellors etc. If they want to litigate they have to pass a question and answer test about the case.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2009/1251.html?stem=0&synonyms=0&query=wang
If you have a problem with something there is no point trying to sweep it under the carpet.
Hi Michael,
Thank you for your comments.
I am familiar with WANG & DENNISON as one of 2 cases in which the family court seemingly supports alienation as being paradoxically in the children’s ‘best interest’. The other case by His Honour FM Altobelli in GAYLARD & CAIN 2012 was publicised in 2012 after he published a letter he wrote to the then adolescent children involved in the case. This letter was an attempt to explain his decision to leave them in the care of the parent who had alienated them by way of false allegations of sexual abuse obtained from a clairvoyant.
Yes, these cases should evoke revulsion and outrage in a family law system that seems to rely upon an implicit paradigm that it is better for a child to lose a loving parent from their lives than to be exposed to the conflict between their parents. This is regardless of whether that conflict has been fomented by the alienating parent to deliberately implicate the rejected parent and to frustrate their attempts to protect their children.
You have highlighted all the relevant issues in WANG & DENNISON but one:
“I have found previously that the mother’s false allegations against the father, and her involvement of the children in these allegations, constituted emotional and psychological abuse of the girls As undesirable as it may be from the father’s perspective, the potential for the children to continue to suffer emotional abuse by the mother in this manner diminishes if the children do not spend any time with the father.”
This is a case of paradoxical self-confirmation of family law’s claims of acting in the children’s best interest by validating social behaviour inimical to that interest. Imagine if a judge ordered that a sexually abused child should remain living with their abuser because the abusive parent might lessen their abuse! In this way, you are quite right, the FCA supports alienation as a valid form of parenting.
This is a violation of social values for which the family law act has no mandate. The family law act as it stands precludes alienation in all but name. However, interference in a loving relationship is not interpreted as the abuse that it really is and therefore our family law system validates alienation as being the child’s ‘best interest’.
Another case Irish & Michelle [2009] FamCA 66 complicates matters in that this judgement changed parental responsibility to the alienated parent because the judge found that the children’s testimony was not plausible noting the alienation processes instituted by the alienating parent.
This highlights the confusion and conflicts within our family law system. In a situation where the children’s views are considered critically significant, on one hand, (WANG & DENNISON) the children are to be believed even in the face of alienating processes but in the other case involving alienation (Irish & Michelle [2009] FamCA 66) they cannot be believed . Enough research has been done to show that children’s testimony is unreliable when exposed to alienation processes. Yet, we have a family law system which places significant weight upon children’s testimony that can be biased by alienation and even when adolescents and teenagers are smart enough to know that there views are not confidential.
You might be interested in my blog on this confusion.
We need more people like you who are prepared to delve into the true meaning of these judgements and how we are being ’socially engineered’ by our family law system.