What are the legal implications of parental alienation?

Co-Authored by Lisa Wagner and Ashleigh Middlin, Doolan Wagner Family Lawyers. Republished with permission.

Parental alienation is a term which is used to describe when one parent (the “alienating” parent) behaves in a certain way to undermine and damage the other parent’s relationship with a child.

Whilst this term is considered to be controversial and there is a reluctance by the Court to label certain behaviour as this, it is apparent that behaviour which falls under this definition is becoming more and more common, particularly when there are parenting proceedings on foot. The uncertainty arising from COVID-19, is likely to see an increase of these cluster of behaviours.

Case Law

In determining what is in the best interests of the child, the Court must consider primary considerations as set out in Section 60CC of the Family Law Act 1975, being:

1.     The benefit of the child having a meaningful relationship with both of the child’s parents; and

2.     The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Although there is reticence for the Family and Federal Circuit Court to identify and label a parent’s behaviour as “parental alienation”, there have been numerous cases where the Court has recognised such behaviour and accordingly, made orders to change primary residence in circumstances where one parent poses an unacceptable risk of harm. 

In Lankester v Cribb [2018] FamCACF 60 (6 April 2018), the Mother was the primary carer of a nine-year-old child and it was alleged by the Mother that the Father of the child had sexually abused her.

During the course of the proceedings, evidence was produced demonstrating that the Mother had been frequently questioning the child about sexual abuse including, on one occasion, having recorded the conversation and the child’s complaints. Whilst there had been medical examinations of the child and an assessment undertaken by the Department which concluded there was no evidence of sexual abuse, it was the Mother’s view that the Father had sexually abused the child.

After the Family Consultant met with the parents and child, it was expressed by the Consultant that in their opinion as a result of the Mother’s behaviour, namely the unfounded allegations, the child would be “exposed to continuing distress and confusion about her relationship with [the Father] whilst she lives with [the Mother]”. Further, that as a result of the Mother’s behaviour, each changeover would be a “highly stressful experience” for the child which would likely affect the child’s emotional and social development, in turn impacting upon the child’s capacity to connect positively with her Father.

Although the Court recognised that changing a child’s primary residence may result in grief, loss, confusion and a high level of stress, these adverse consequences were considered to be outweighed by the risk the Mother posed to the child should the child continue to live with her. On the basis that the Mother posed an unacceptable risk of harm to the child while in her care, the Court ordered that the child’s time with the Mother be suspended for a period of six months, after which time there be a staged reintroduction of time (including planned supervised and unsupervised time) with the Mother.

Similarly, in Goldman v Goldman [2018] FamCACF 65 (12 April 2018), the Court changed the primary residence of the two children (aged 11 and 13) as a result of the Mother’s behaviour. This was largely based on the Single Expert’s opinion that the children had a “close dependent relationship” with the Mother which was “not conducive to good future mental health”. The Court also formed the view that the Mother was entirely focused on punishing the Father by “… turning the children’s affections away from him” which in turn caused emotional harm to the children and posed a continuing unacceptable risk of harm to them.

The consequences of parental alienation

As a consequence of the Mother’s behaviour, a change of residence was ordered which resulted in the children living with the Father. The Court also ordered that the children’s time with the Mother be suspended for a period of four weeks, after which the children spent supervised time with the Mother for one year, and thereafter in accordance with a gradual and incremental increase of unsupervised time. 

It is not often seen that the Court orders a change of residence for children from one parent to another. Where it is established, however, that one parent’s behaviour has (and will continue to) harmfully impact a child and/or their relationship with the other parent, the Court will consider such an outcome. This is the case even if such behaviour is not labelled as “parental alienation”.

Disclaimer:

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact Doolan Family Lawyers.

Early Childhood Regressions: Trauma or Conflict?

Milestone regressions and behavioural changes of young children are frequently a major concern of separating parents. There are two, very rigid viewpoints often held by parents when regressions are reported. 

Parent A often reports that the child has regressed to bedwetting; is having unexplained tantrums, or appears to be over-tired etc. They fear that the child is not being adequately cared for and this often results in withholding the child due to those fears. In many cases it results in re-litigation or further delays current proceedings. 

Parent B most frequently claims that the child is happy in their care and that they are well looked after. They have trouble grasping the problem because it’s not occurring under their watch. They will commonly claim that Parent A is making this up to cause trouble for them. 

While all suspicions of child maltreatment should be explored, there is a more likely explanation which is centred around the child’s perception of their dramatically changed world. Psychologists and family therapists state these regressions or changes in behaviour are not necessarily something bad that is being done to the child or fabricated by the other parent. Rather, it is often the presence of conflict between the parents, and the absence of the familiar relationship of the parents when in the child’s presence. 

Even when children have been exposed to parent conflict prior to separation, they become accustomed to it. Their routine has stayed the same, they are fed and cared for in the one home and both their parents are coexisting with them under the one roof. When separation occurs and routines are disrupted, the child can have significant adjustment issues. 

However, this is not a reason to resist shared care. Children, even young ones, can and do adapt fairly quickly. It is the presence of conflict and the refusal or inability of parents to separate their issues from the child’s needs that cause the behaviours that underpin this apparent trauma. 

I asked Family Therapist, Terri Kelly for her views. This is what she said. 

One of the hardest things a parent can do is find the courage to pause and ask themselves ‘what if?’. 

What if the way my child is behaving means something different to how I see it? 

What if my child doesn’t see the parent the same way I do? 

What if my thoughts and beliefs are colouring my views on what my child’s behaviours mean? 

Finding the courage to be vulnerable enough to see a different perspective is a huge ask when you have fears and doubts about the other parent and surety that you are right in how you see things. 

But, what if? 

There is always more than one way of understanding your child’s experiences. When you find the courage to pause and ask yourself the question of what if, you open the door to new possibilities of seeing the world through your child’s eyes.

Terri Kelly

What the child needs is a sense that everything is okay between their parents, even if it’s not. Prior to separation, they are familiar with seeing their parents talking to each other and sharing time together with them. When conflict is high after separation, what they now experience is an abrupt changeover in a strange location where neither parent can be civil, let alone spend time in the company of the other parent.

These children need particular care and for their parents to be attuned to their perception of the world. Being child-focused means being able to consider these matters through the child’s eyes

From the child’s perspective, they are dropped off and picked up in a hostile, often unfamiliar environment. They get a strong sense of their parents’ anger and resentment displayed toward each other. Sadly, even infants get a sense of being caught in the middle. They feel torn in their love, and as a consequence will often say or do things which are out of character. They will feel a need to express an allegiance to one parent, or the other. Sometimes both. 

A child will often say “I don’t want to go back” or “I don’t want to leave you”. In reality, what the child is most likely saying is “I don’t want to feel torn between you”. 

When you find the courage to pause and ask yourself the question of ‘what if’, you open the door to new possibilities of seeing the world through your child’s eyes.

What is optimum for children in these moments is time together with their their parents. At very least, they need to get a strong sense that everything is okay.  

While it seems a far cry for many parents involved in family court proceedings to facilitate time together as a (separated) family, those parents who navigate amicable separations report doing these activities regularly. Studies show that these children do not have the same level of associated trauma as parents who are high in conflict. 

So how do you go from being hostile to being ‘friendly’? Well, that’s up to how much you are willing to help your child adjust. And this means both of you. I say this over and over in consultation with separating parents: “You must find a way to separate your relationship issues from your co-parenting requirements to meet the child’s best interests.

You don’t have to be friends with your co-parent, but if you want to give your child the best chance of adjusting without added trauma, being friendly toward them will significantly help. 

Recommendations 

Some adjustments I suggest parents make (wherever possible)

  • Always speak positively about the other parent 
  • Help the child make a gift from them for their other parent 
  • Send photos to their other parent on behalf of the child and show/tell them you’re doing it. Bonus points if you can read/show their happy response once received. 
  • Give hands-on help to facilitate Facetime calls. Say hello. Be courteous. 
  • Invite the other parent to share part of special days together as a ‘separated’ family. 
  • Share an occasional meal together. 
  • Become okay with the other parent being in your home for short periods. 

Even if you’re faking it, you’re doing it for the child. It is vital that both parents put aside their differences for this to occur. If you can’t achieve that on your own, or you fear your co-parent won’t do their part, you should seek support from a co-parenting coach or parenting coordinator. 

In the vast majority of cases, the child is not being hurt or harmed in the other home. They are not traumatised by the separation itself. What they are responding to is the conflict they witness, or sense between their parents, and the absence of having both of you together in their very small world. 

So ask yourself, What If…..

For more information, contact Jasmin Newman

Because it’s for the Kids – Building a secure parenting base after separation

Learning to co-parent is a new path that requires adapting what you used to do, to what you now need to do. This article by Jennifer McIntosh, Ph.D offers wisdom to help keep the kids in mind.

Building a secure parenting base after separation

Many people say being a parent is the best but hardest job in the world, and we don’t get proper training for it.

Separation between parents is also hard – to put it mildly – and there’s no training for that either.

There’s no doubt that being a separated parent can be hard, emotional work.

It can be difficult to know what you need and want, and what your children need and want.

A secure base

With the right support, most parents can find a way to build a secure base for their children after separation. That’s good for parents, and vital for their kids.

We hope this booklet helps you do that.

Is separation harmful for kids?

If it is managed well by the adults, separation doesn’t have to be harmful for children in the long run.

Is conflict between parents harmful for kids?

Sometimes. What hurts children and their development the most, short and long term, is ongoing adult conflict that doesn’t get sorted out.

The good news: kids can cope with conflict between parents so long as:

  • the conflict is not violent
  • the conflict is not frequent
  • parents work at sorting it out
  • kids understand they are not to blame
  • kids are not caught in the middle of it.

In fact, children of all ages can learn good coping skills, provided they are not too stressed by what is happening in the family.

What happens when separating doesn’t stop the conflict?

Some parents can sort out their differences with a separation. For many, conflict grows around the time of separating and continues long after divorce. This is very stressful for parents… and for children.

It’s doubly important to think about what children need in these situations.

What does high conflict look like?

Conflict comes in different shapes and sizes.

Parents in high conflict typically do these sorts of things with each other:

  • remain very angry
  • distrust each other
  • become verbally abusive
  • avoid each other unnecessarily
  • argue or interfere
  • go to court a lot
  • threaten, intimidate or try to control their ex-partner
  • are aggressive or violent
  • have trouble communicating about the children
  • criticize each other’s parenting.

That’s hard for anyone to live with, and important to change, because…

Parents’ ongoing conflict costs kids too much

Research shows the sad truth that conflict between parents that goes on and doesn’t get resolved is very hard on children and teenagers, and can affect the way they develop:

  • they lose their ability to trust
  • they make poor attachments to their parents
  • they don’t believe in themselves
  • they get overwhelmed by their feelings
  • they show their distress in bad behaviour
  • they have trouble making and keeping friends
  • they aren’t confident
  • they don’t perform as well at school
  • they have trouble making healthy adult relationships.

Something to think about

One in four children from separated families suffers from poor mental health. That’s a lot more than “normal”.

Separation doesn’t cause this. Long, bitter, unresolved conflict does.

Children’s energy gets drained by high or frequent conflict between parents, when mums and dads can’t ‘be there’ for them, because their minds are full of tension and anger.

Babies and young children are especially vulnerable to both family conflict and being looked after by overwhelmed parents.

Conflict costs parents a lot too, such as:

  • Worry and anger that goes on and on.
  • Depression.
  • Losing perspective: forgetting what’s important.
  • Not feeling like a good parent.
  • Money for mediators, counsellors.
  • Nerve-racking and expensive legal processes.
  • Time lost from work.
  • Forgetting there are solutions, not just problems.

You can protect your children from your conflict.

Parents in conflict with their ex-partner need support to sort it out. In the meantime, children can be protected from adults’ tensions when both parents:

  • keep the child out of the middle of their arguments
  • never ask the child to carry messages to the other parent
  • don’t ask the child personal questions about the other parent
  • make arrangements that suit the child
  • know their child may have different feelings from the ones they have
  • try to notice what it’s really like for the child
  • give permission for the child to enjoy their other parent
  • help the child to have a healthy relationship with their other parent
  • notice when the tension is being soaked up by their child
  • remember that children can twist themselves into strange shapes inside, in order to cope with conflict between the people they love most.

What’s time got to do with it?

Some parents focus on how much time they will each get with the children.

From your children’s point of view, it’s much more important to work out what kind of support they need from each of you.

Read on…

What children need when Mum and Dad separate

What children need after their parents separate is exactly what they needed before: a secure emotional base.

What all children need when Mum and Dad separate

Children need a secure base with parents they trust and feel comforted by.

Above all they need:

  • a secure base for exploring, growing and developing
  • help to solve their problems
  • encouragement to learn
  • routines that help them feel in control
  • firm and loving limits to be safely independent
  • a trusted parent when they need to be dependent
  • protection from trauma.

Good parents don’t get it right all of the time, but they do try to repair mistakes when they happen.

What babies need when Mum and Dad separate

Babies need all of that, plus a bit extra. Babies need more help to manage their feelings.

They need predictability, and a lot of time with parents who nurture them. They need parents who play with them, listen carefully to their efforts to communicate, and who keep their world small and safe.

If they’ve had a safe and nurturing relationship with both parents, they need to continue to have that. They need visiting schedules that don’t overwhelm them with too much change, or with conflict between their parents. Babies need parents who are tuned into their needs, rather than having to be tuned in to Mum’s or Dad’s feelings.

What teenagers need when Mum and Dad separate

They may be on their way to adulthood, but teenagers still need a secure base with their parents, in order to reach their potential.

It’s the little, day-to-day things that matter. Research shows that the best parenting for teenagers after separation is done by keeping the daily stress in the teenager’s life as low as possible.

This happens when:

  • Mum and Dad are ‘there’ on a daily basis to listen and give support. That can be in person or by making sure that your teenager knows how to reach you by phone or email, and knows that you will make every effort to be available when they need you. Those check-in calls are so important: “Just calling to see how things are today”.
  • Each house has a daily routine that is predictable, and has consistent rules and expectations. Parents arrive home when they say they will, provide meals on time, and give a good structure to the teenager’s day, that helps them manage their load. This really reduces the daily stress that teenagers can feel.
  • Parents are able to keep tabs on their teenager and take a real interest in their life. Without intruding too much, these parents share in their teenager’s interests, know what they need to get on with their activities, know where they are, and how they are spending their time.
  • Each parent remembers special days in their teenager’s life, and takes part in them as best they can. That includes the big days like birthdays, and the other moments that are important. The “of course I’ll be there” message or the “good luck” calls before the big match are worth their weight in gold.
  • Parents don’t rely on the teenager to give messages to the other parent. This really stresses adolescents, especially when they become the target of Mum’s or Dad’s frustration when a message goes astray, or when they don’t get the answer they wanted. Teenagers who feel caught between their parents are at the highest risk for problems. Parents need to speak directly to each other whenever possible, because even an apparently harmless message can cause stress for the teenager.
  • Teenagers feel close to their parents.
  • Step-parents have a good relationship with the teenager.

What about teenagers and conflict?

Adolescents are very aware of conflict between Mum and Dad, and, like younger children, they do best when their parents manage that conflict and keep it low. They aren’t as likely to blame themselves for trouble between their parents as little kids are. However, teenagers from high conflict families often leave home earlier than their friends who live in low conflict homes. So the message for parents of teenagers is the same as with all kids: keep your conflict low and keep your teenager out of communication between you and your ex-partner.

This picture tells the story of the circle of security

Always be bigger, stronger,
wiser, and kind.
Whenever possible follow
my child’s needs.
Whenever necessary take charge.

5 Good Reasons To Be Quiet In Conflict

Being quiet in conflict is a challenge but if you master this art in the communication you may learn a very valuable tool.

Getting involved in an argument is rarely beneficial. However, sometimes there are matters which need to be discussed in which emotions become elevated. The natural position for most people is to push back against those they are opposed to. I certainly get the sentiment, however here’s an alternative that you might like to employ.

The following is an adaptation from a blog I wrote several years ago. It still rings true today.

#1  — You can’t listen while you’re talking

Listening is so much more than hearing words. It’s an observation of intent, mannerisms, inflection and emotion that are all being bought into the conversation. Learning through observation is a far better tool that having to prove your point of view.

#2 — You may not be right

Unimaginable, I know but both of you can’t be right. Perhaps you can leave room for the fact that maybe it’s not you this time.  And if you are right, then it will prove itself in time so be patient. A point about avoiding conflict that I would like to make here is that even if you are right, so what? Apart from ego, does it really help you to prove you are right? 

#3 — You can learn a lot from listening

Giving someone space to speak can be really powerful for both of you to avoid conflict.  You can both learn from this experience and I often find that people can resolve their own issues, just by being heard. And there is a gift here for you if you watch for it, but you may get a sense of what it is that is frustrating them if you give them space.  It’s better to understand than need to be understood.

#4 — You will create space for compassion

This one is a favorite of mine.  If you can be silent enough to hear someone else’s story and to view the world through their eyes you will start to see that their path and their experiences were different to yours. You don’t have to agree with their version but compassion opens the door to understanding.

#5 — It gives you time to think instead of reacting

Really, if you can start to handle this one your communication problems will be a thing of the past, and all because you were quiet for a while.  Often we will retort with a comment that we might later regret or realise not to be based on anything other than our own hurt. So we project our own pain instead of hearing someone else’s.  If we allow time to absorb what the other has said and then come up with a rational response it will make things way smoother for both of you.

The art of being quiet in conflict is communication skills, but it’s rooted in a willingness to resolve the issue in front of you. Always keep the children in focus. Their love for you both is greater than any argument.

Need help? Try our Parenting After Separation courses here