Parental Alienation and Family Law

Separation and divorce can place enormous pressure on families, especially when former spouses share the care of young children. While most children maintain positive relationships with both their parents after separation, a percentage of children become estranged from one parent. In some cases, one parent actually attempts to set their child against the other parent, a process known as parental alienation. This page defines parental alienation and looks at its impact on family law matters.

What is parental alienation?

The term parental alienation syndrome was coined in the 1980s to describe the act of one parent turning their child against the other parent. The offending parent typically uses tactics such as emotional manipulation, brainwashing, and programming to drastically undermine the child’s relationship with the other parent.

Parental alienation does not refer to circumstances when a child rejects a parent based on their own experiences (such as after family violence). Rather, in a case of parental alienation, the child’s rejection of one parent reflects the perspective of the other parent. Parental alienation can be caused by either a mother or a father, but is most typically directed towards the parent who spends less time with the child and therefore has less opportunity to influence the child.

Some behaviours that can contribute to parental alienation include:

• Belittling or criticising the other parent in front of the child;
• Revealing unnecessary details about the separation or divorce to the child;
• Asking the child to spy on the other parent and report back;
• Deliberately keeping the child from seeing the other parent;
• Claiming that the other parent is dangerous or a risk to the child or parent; and
• Unnecessarily monitoring communication between the child and the other parent.

In very serious cases of parental alienation, one parent will convince the child that the other parent was abusive when there was no such behaviour. This form of parental alienation is particularly damaging because it not only injures the relationship between the alienated parent and the child, but also poses a risk of psychological trauma to the child because of the false allegations.

Does family law recognise parental alienation?

There is a popular misconception that Australian family law does not recognise the negative effects of parental alienation. On the contrary, while the term “parental alienation” is not defined or used in the Family Law Act 1975, Australian courts have long acknowledged the toxic impact of this kind of behaviour. In some cases, the court has explicitly referred to parental alienation in family law proceedings. The term is now widely used in Australian family law cases, especially in contentious parenting disputes. Additionally, the Federal Circuit and Family Court of Australia sometimes recognises an example of parental alienation while using another label. In such cases, this conduct is called estrangement, psychological abuse, or preferred alignment.

How does the court deal with parental alienation?

Generally, the first step in resolving a case of parental alienation is to use a dispute resolution technique such as negotiation or mediation. In mild cases where the alienation is unintentional, some open communication may be enough to stop the problematic behaviour. If this approach does not work, the alienated parent can raise the issue with the court. The court relies on evidence, such as reports from mental health practitioners, the child’s school, and family reports, to determine whether the child has been alienated. A family report is completed by a family consultant, who meets with the parties (including the child when appropriate) to help the court determine the issues within the family dynamic.

In cases of parental alienation, the court will start by considering the best interests of the child. Under section 60CC of the Family Law Act, the court’s primary consideration is the benefit of the child having a meaningful relationship with both their parents, and the need to protect the child from psychological and physical harm or neglect. When there is evidence of family violence, including psychological trauma, the need to protect the child comes before any other consideration. The court will also give consideration to other factors, such as:

• the views of the child, their maturity and level of understanding;
• the nature of the child’s relationship with their parents and others;
• each parent’s fulfilment of their caring responsibilities, whether they spend time with the child, make major decisions about their life and communicate with the child; and
• the likely effect of any changes to the child’s circumstances.

In serious cases of parental alienation, the court may allow the alienated parent to request a change of primary residence for the child to reduce exposure to harmful behaviour.

Parental alienation should be taken seriously and tackled as early as possible. Please contact the friendly team at Go To Court Lawyers if you are experiencing alienation and would like to discuss your options. We can work with you to resolve a conflict or represent you in court to seek an order addressing this behaviour. Phone 1300 636 846 for any legal assistance.