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Children and custodyDivorce and separationFamily court

Enmeshment leads to children being moved to dad’s

By November 20, 2018October 28th, 2021No Comments

A recent case in the family court in Melbourne highlighted some of the issues that parents face after divorce when they head to court to sort out parenting disputes, and some of the difficulties the courts face in trying to ensure a successful relationship between children and their non-primary carer is maintained, particularly where enmeshment and alienation are possible factors.

Against a backdrop of constant litigation over several years, and a history of contravention of orders, the case of Dawson & Wright (No. 2) [court-appointed pseudonyms] related to two children aged 10 and 14 who had lived with their mother all their lives but had their residence drastically changed after suffering four years of having their mother “thwart” the parenting orders that had earlier been put in place to ensure their father had a relationship with them after divorce. After missing “four good years of his parenting”, the children were ordered to live with the father and he was awarded sole parental responsibility in order to provide the children stability and to improve their long-term outcomes. The kids were ordered to spend time with their mother on alternate weekends instead.

The kids’ relationship with their dad since separation had been described as “disrupted and difficult”, with the situation deteriorating “to the point that the children were resistant to spending any time with their father”–and the court squarely blamed this on the mother, who harboured “significant ill-will” towards him.

Despite unsubstantiated allegations of violence, initially leading the mother to demand that the father’s time with the kids be supervised, those demands had “vanished” in court with the mother agreeing to comprehensive time when the initial parenting orders were made, with the court noting “those orders must mean the mother was saying to the court that the father had the capacity to care for the children including during overnight time”, and that she had no concerns over their safety. The judge said, “the evidence does not support the conclusion that the father was violent towards her or the children”.

Parenting arrangements after separation have to be made in the children’s best interests under the law, which stipulates that kids are entitled to a meaningful relationship with both parents in the absence of factors such as risk of harm. And while the father was not deemed to be a risk to the children, the court concluded the mother was. This was because her “unrelenting view that the children could not be free to have a relationship with their father” was a view which exposed them to “the psychological harm”.

Alienation as abuse

The mother’s conduct amounted to alienating the kids from their dad, and she had “actively coached them to hold a certain view of the father”. This was despite the Family Consultant’s view that the children “desperately wanted to engage [with their father] but if they had done so, there would have been repercussions”.

One of the things the family courts expect from parents in conflict after separation is that they avoid involving the children in the parenting dispute or getting them to ‘take sides’, aligning with one parent and alienating the other. In this case, the mother admitted she regretted having overly involved the children, and that they had been “too aware” of her views on their dad. For example, the mother told them they were being removed from their school because their father had stopped paying fees. She also gave the children too much information about the court proceedings and the orders she sought, and she persistently discussed the father’s alleged cheating with them.

The mother’s involvement of the children, and her “deliberate” attempts to alienate them from the father, were probably based on the fact that she had “not accepted the end of the relationship with the father and that drove her desire to thwart his relationship with the children. Her unilateral actions in doing so damaged the relationship that the children should have had with the father.”

The court criticised the mother on two grounds: that she wouldn’t allow the kids to have a relationship with their dad, and also because the Family Consultant had “observed some disturbing controlling behaviour in relation to the children which prevented [one of the children] from being herself”, which was described as reflecting ‘enmeshment’.

What is ‘enmeshment’?

‘Enmeshment’ is a term often used in connection with family law matters which involve potential parental alienation. ‘Enmeshment’ describes an unhealthy relationship between a parent and a child where personal boundaries are not clear and where the parent is inappropriately overprotective due to their own insecurities and emotional issues.

In this case, the court agreed with the Family Consultant that enmeshment was a significant factor, because the mother’s enmeshed relationship with her kids “meant they could not be emotionally free to have a relationship with their father” and that she would “not foster the father and children’s relationship”. The Family Consultant expressed concerns about the younger child’s ability to individuate from her mother due to the enmeshment with her.  The court found it crucial to protect the children from this enmeshment in the future.

The judge found the father was genuine and persistent “in endeavouring to make his relationship beneficial to the children. He has taken every opportunity to participate in their lives, including under trying circumstances at the supervised visits”. By contrast, the mother’s attitude to cooperative parenting was said to be revealed by such actions as refusing to provide her children with changes of clothing or other items to encourage a smooth transition for the father’s time with them, because she claimed this was not her responsibility.

If the children’s relationship with the dad was allowed to continue in the way it had over the past four years, it would become non-existent, and there were likely to be serious long-term effects on the children in their relationships. In situations like this, one option other than changing the children’s residence is for the entire family to undertake intensive therapy but this would only work if the mother’s mindset could be changed, which the Family Consultant believed was unlikely.

While the kids wanted to stay living with their mum, the court couldn’t give their views very much weight, because they had been so indoctrinated by their mother against their father that “they know no different”.  It was hoped that the court’s decision would put an end to the children having to hear endless criticism of their father, and give them some finality going forward.

When parenting orders are made under the Family Law Act, ‘particulars of obligations’ created by the orders are specified.  In this case, these particulars included the words:

“You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.”

Sadly, the mother proved incapable of fulfilling her obligations under the parenting orders, with drastic repercussions.

You can read the case here.

Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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