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Could parental alienation be considered family violence?

By September 16, 2019February 23rd, 2024No Comments

Father argues ‘parental alienation’: Despite the family court judges describing him as a “competent and loving father” and a “thoroughly decent human being”, a NSW man was recently dealt a blow after he failed in his appeal against parenting orders that did not grant him any time with his daughter. The appellate judges expressed sympathy for the dad and his “concerted campaign to try to ensure the child does not suffer the adverse consequences of his unnecessary elimination from her life”. But they explained they were compelled to dismiss his appeal.

In his quest to “do almost anything to have a relationship with the child”, the father had argued the mother’s alleged parental alienation constituted family violence under the Family Law Act 1975 (the Act) and that she posed an unacceptable risk of causing their daughter psychological harm through coercion and control.

Given the update to the definition of family violence in the Act to include coercive and controlling behaviours, could this argument work? Theoretically, perhaps, and the appeal judges here certainly didn’t expressly rule it out as a strategy.

But as the father in this case (pseudonymised as Grainger & Grainger) discovered, the reality is it may not be an easy case to make. For one thing, you need solid evidence to prove anything about your co-parent’s behaviour–nobody’s just going to take your word for it. Here, the father’s theory that the mother was alienating him was stifled by his lack of evidence, with the appeal judges noting that the argument was “no more than his bare opinion”, an “uncorroborated opinion” carrying “little probative weight”.

In the end in this case, the courts did agree that the mother’s behaviours were preventing him having a relationship with the child, but they did not go so far as to define her actions as parental alienation or accept them as constituting family violence. This was due to the father’s lack of evidence on the subject of parental alienation and because he could not provide any evidence there was coercion or control occurring. Rather than seen as having a malicious intent, the mother here was characterised as lacking insight into the effects of her behaviour.

The case background

There were two rounds of litigation before this appeal, determining both parenting and property issues. The first time the courts granted the father supervised time in a contact centre with the aim of gradual reintroduction, then for apparently contentious reasons, things broke down, and the mother launched a second round of litigation when she wanted to take the girl overseas. The father then opposed this and applied for primary residence to be reversed to him. The family was ordered into therapy but this did not succeed against the child’s “staunch resistance” to the dad. The final orders neither prescribed nor prohibited his contact with the girl, which the dad appealed, claiming this would just allow the mother to continue to alienate him.

The self-represented father, himself a law student, appealed on grounds of procedural fairness and errors of law. But the appeal found that the trial judge made no error, gave adequate reasons, the findings were open on the evidence and closely resembled the expert’s evidence.

The family violence argument

The father had attempted to argue his daughter was being exposed to family violence by the mother due to alleged “coercive and controlling” behaviours towards the child. He argued that alienation leads to a risk of educational neglect, psychosocial deprivation and emotional abuse “fitting the definition of family violence in s4AB of the [Act]”. If you read the definition in the Act, it’s true that it’s quite broad due to the words “or other behaviour”:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

So it’s possible to see that it could be argued parental alienation/alignment behaviours could fit into ‘or other behaviour’ category. But the trial judge had disagreed that an “emotional disturbance” equated to “psychological harm” and the appeal judges said the father had not challenged that.

It’s an argument that could conceivably be challenged with the right evidence. Perhaps if the father had been able to lead the court to the latest scientific evidence about parental alienation impacts, he may have had more success?

Noting the father’s “predicament”, the appeals court however said that the trial judge was entitled to rule that he had not proved the situation met the criteria for family violence as defined in the Act. They did suggest that parental alienation could qualify as a family violence behaviour–if the element of coercion or control has also been made out.

Why was the mother’s residence ruled in the child’s best interests?

In deciding that the girl’s best interests were served by her continuing to live with her mother, despite the mum’s inability to support a relationship with dad, the appeal judges found that the trial judge had given these factors appropriate weight:

  • The girl refused to even spend time with her father, let alone live with him;
  • Except for one visit under supervision, the girl hadn’t spent any time with her dad for several years;
  • The child psychologist was “pessimistic about the child’s reconciliation with the father”;
  • The expert recommended “one parent would most probably need to be shut out of the child’s life..and that should probably be the father because the child’s reunification with him cannot likely be achieved”;
  • The outcome would reduce the chance of future ongoing litigation;
  • The girl’s strongest relationship is with her mother;
  • Over recent years the girl has had little opportunity to develop any relationship with her father; and
  • The father underestimated the challenges the girl would present if her residence was reversed [tom].

For a parent suffering alienation, it would rub salt in the wound to find that the more time spent apart from a child, the less likelihood there is of court-ordered reunification, because of the preference of courts not to disrupt a child’s life and because parental reintroduction after a long absence is hard.

However, there have also been cases where the Australian family courts have reversed residence due to parental alienation issues—in those cases, you’ll usually find there’s a malicious intent on the part of the alienating parent.

Perhaps the current phase of family law reform underway in Australia might also see debate on the issue of whether parental alienation behaviours should be formally incorporated into family law?

(Note – this case deals with other issues as well. You can read the full case here.)

Do you need help 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 note legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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