Parental alienation: what the courts actually look for.
In 2019 I was asked to be involved in providing legal commentary for the book “Mum’s the Word: A Handbook for Separating Families”.
This book brings together five mothers - a chemist, a product designer, a hairdresser, a fitness expert, and a child psychologist - to share heartbreaking stories of their fight to maintain a relationship with their own children through high conflict separations, and one truly brave by who provides a child's perspective of parental alienation.
This book touches on themes of parental alienation. The Federal Circuit and Family Court of Australia is generally cautious about using the term “parental alienation syndrome”. However the issue of parental alienation arises frequently in a family law context, and the focus of that litigation is on behaviours and the child’s circumstances and not the label itself. The terms we frequently use are “alienated” or “aligned” with regard to children involved in these disputes and “rejected parent”. The court’s focus is often on behavioural dynamics such as conflict, loyalty and enmeshment, coaching or brainwashing.
Alienation cases often arise alongside allegations of family violence and are some of the most complex cases to navigate.
Alienating behaviour refers to conduct that influences a child in a way that undermines, damages or interferes with their relationship with the other parent. Such behaviour may be intentional or unintentional and can occur in a variety of ways.
In some cases, alienating conduct is overt and involves direct attempts to negatively influence the child's perception of the other parent. In other cases, it is subtle and develops gradually through repeated criticism, negative commentary, exclusion from important aspects of the child's life, or behaviours that encourage the child to reject or resist a relationship with the other parent.
The consequences of alienating behaviour can be significant. If left unaddressed, it may result in a substantial deterioration of the parent-child relationship and, in some cases, a complete breakdown in that relationship. Contributing factors may include difficulties adjusting to separation, unresolved conflict between the parents, the introduction of a new partner, prolonged litigation, mental health issues, or other complex family dynamics.
By its nature, alienating behaviour can be difficult to identify. Changes in a child's attitude towards a parent often occur gradually and may not be immediately apparent. In some cases, the difficulties resolve over time and the relationship recovers. In others, the damage may become entrenched, making intervention more challenging.
Where the Court is satisfied that a child's relationship with a parent has been adversely affected by alienating conduct, a range of orders may be available to support the restoration of that relationship. These may include family therapy, reunification programs, parenting education, the appointment of professionals to assist the family, or, in some cases, significant changes to parenting arrangements. Early identification and intervention are often critical to achieving the best outcome for the child.
The Court will generally require evidence supporting allegations of alienating conduct. Depending on the circumstances, this evidence may include:
observations and recommendations from a family consultant or court-appointed expert;
evidence from independent third parties, such as teachers, counsellors, psychologists or other professionals involved with the child;
evidence from family members or other witnesses;
communications between the parties; and
the parties' own evidence regarding relevant events and interactions with the child.
Every case is assessed on its own facts. The Court frequently relies on professional assessments and expert evidence to understand the reasons for a child's resistance or reluctance to spend time with a parent and to determine the most appropriate pathway forward.
Where allegations of parental alienation are raised, the Court typically considers:
whether the child is resisting, rejecting or refusing a relationship with a parent;
whether that resistance or rejection can be explained by the conduct of the rejected parent; and
whether the conduct of the other parent or another person has contributed, directly or indirectly, to the child's attitudes or behaviour.
The outcomes in these matters can be significant, including changes to parenting arrangements in appropriate cases. However, such outcomes are never automatic. The paramount consideration for the Court is always the best interests of the child. In determining what orders should be made, the Court will carefully assess the likely short-term and long-term impact of any proposed changes on the child and their ongoing relationships with both parents.
If you are concerned that your relationship with your child is being undermined or that your child has been exposed to alienating behaviour, it is important to seek specialist family law advice as early as possible. Early intervention can assist in identifying the issues, preserving important evidence, and exploring both therapeutic and legal avenues to protect the child's relationship with both parents.