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Fighting parental alienation: Family law inquiry

By April 7, 2021November 15th, 2021No Comments

Will Australian family law reform deal with the fraught issue of parental alienation? The recently released recommendations contained in the Second Interim Report of the Parliamentary Family Law Inquiry (which we discussed here), suggest that this subject is finally receiving the attention it deserves by the authorities. It’s a highly complex and controversial topic even amongst experts, and it is closely related to another controversial subject, the making of false allegations in the family court system. For many Australian parents, fighting parental alienation is so much more than academic: it’s personal, causing untold heartache. But it also seems to generate a lot of confusion in both the community and the legal and medical professions. Let’s take a quick look at where things stand right now, and where things may be headed.

What is parental alienation?

Parenting orders, including consent orders, are only made by the courts in about 3% of all family law matters, however the Parliamentary Family Law Inquiry received many submissions regarding concerns over “allegations of one parent turning their child against the child’s other parent”.  Therefore, the Inquiry addressed the concerns about parental alienation in its report, acknowledging that parental alienation is distinct from the debunked “Parental Alienation Syndrome”. This is where some of the controversy lies, with some arguing that the term “parental alienation” conflates the two concepts and causes confusion. Other controversy over the use of the term exists because of the fear that it has become inescapably gendered, due to its misuse in the context of family violence claims.

In practice, our courts have accepted the term “parental alienation” into usage as being synonymous with “child-aligning behaviours”, which any family law professional–and any parent suffering from it—will attest is a very real issue indeed. In the Inquiry report too, the Committee notes that it heard “evidence of a number of instances where a parent has denied the other parent access to their children, for no apparent reason other than spite or to achieve greater financial outcomes”.

Parental alienation or parental protection?

When a parent denies their co-parent access to the child, and seeks to turn the child against the co-parent, for strategic reasons or out of spite, this is clear parental alienation. In contrast, sometimes a parent is validly shielding the child from the co-parent for reasons such as family violence—this is not parental alienation because, as the Committee notes, there is a “substantive reason” for the withholding behaviour. But what can then occur is the abusive co-parent will accuse the alleging parent of “making false allegations’ to engage in “parental alienation”.

False allegations

The issue of the making of false allegations by parents engaged in family law disputes is intricately linked to the issue of parental alienation. That’s because making false allegations is absolutely one of the tools used by parents when attempting to alienate children from the other parent. Many experts in the field are of the view that there are very few cases of truly false allegations.

In such a situation, the alleging parent accuses the other parent of abuse, with the deliberate intention of preventing the other parent from having contact with the child. While serious claims are investigated, parents can lose contact with their child and by the time the parent is cleared of abuse, it may be too late to undo damage that’s already been done.

And so, the task of the courts is to decide: who is telling the truth? Is an alleging parent making false allegations to engage in parental alienation? Or is an accused parent using the concept of parental alienation to reduce the alleging parent’s credibility on the abuse claims? What a conundrum.

It’s therefore critically important that the Government takes on board the inquiry Committee’s recommendation that the courts “establish a mechanism by which allegations of a person wilfully misleading the court in family law proceedings can be reviewed, and where appropriate, referred for investigation for perjury”. Further, the Committee has recommended that “the Commonwealth, states and territories, through the Council of Attorneys-General, undertake a review of the state and territory family violence order framework to consider what may be done to address the concerns raised…in relation to…what actions should courts take to discourage improper applications, such as those made based on allegedly false allegations not ultimately upheld on review of the evidence (including whether any record of such application should be removed from the alleged perpetrators record)”.

In other words, there has to be some method of separating the wheat from the chaff when it comes to allegations being made against a parent, and some form of sanction against an alleging parent where allegations are found to be false.

What did the Inquiry recommend regarding parental alienation?

The Committee recommends that “all family law professionals, including judges, undertake regular professional training, including in the areas of [amongst other things] parental alienation dynamics”. It’s hoped that better education into family violence and parental alienation dynamics will “assist the court to identify cases where parental alienation is occurring or where a parent is legitimately seeking to protect their child from harm”.

There’s a very good recent article in the Irish Examiner which explores the topic of parental alienation in depth. On the subject of training, the newspaper notes, “In other jurisdictions such as Canada, judges presiding over family law cases have yearly training on estrangement, parental alienation, and parental coaching”.

Ireland too is going through a parallel phase of family law reform, with its own government-commissioned reports producing recommendations for changes to their family law legislation. Their Department of Justice is, apparently, committed to conducting research into the issue. So far, our Government has not addressed the need for more academic research.

Ireland is in fact ahead of the game, with an existing “international evidence-based model of assessment, where we can identify whether we are dealing with a bona fide case of parental alienation”, as well as an “evidence-based model of intervention”. Early intervention (with Alternative Dispute Resolution processes) is critical to prevent the permanent entrenchment of alienation and potentially irreparable damage to a child-parent relationship. As an expert told the Irish Examiner:

“The good thing about having this model of assessment is that when an abusive or neglectful parent alleges that the healthy normal range parent is engaging in parental alienation, this can be examined. That is a perpetuation of abuse and a misuse of the construct and that cannot be tolerated. It does a disservice to the genuine parents who are suffering.”

With parental alienation now on the reform agenda, the question is, are the proposed Australian reforms enough? Is it enough to require that family law professionals and the judiciary receive regular training on parental alienation dynamics? And that there be ways to identify when allegations against a parent are false, and implement sanctions against a falsely alleging parent?

Shouldn’t reforms also take into account the many nuances in the debate, for example:

  • whether parental alienation should formally be regarded as a form of family violence (as it’s essentially abuse against both the child and the alienated parent),
  •  how to handle the potential gender biases (we expand on this here), and
  • the fact that parental alienation may be a breach of human rights.

Here at Alliance Family Law, we believe family law reform in Australia should thoroughly examine the evidence being aggregated around the world on the twin issues of parental alienation and false allegations, and to implement evidence-based best practice. There needs to be a holistic view to fighting parental alienation, so that proactive decisions can be made to optimise the best interests of children. We will keep an eye on this important debate and let you know of developments.

For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law 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 Family Law.

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