Every family law matter is unique, however, one issue that commonly arises in child custody disagreements is parental alienation.
This issue can add stress, upset and further acrimony to the situation, making it all the more difficult to come to a resolution.
A fundamental part of family law across Australia, particularly in relation to a child's best interests, is case law.
Key Points
- Parental alienation can greatly influence child custody disagreements, making it difficult to decide what is in the best interests of the child.
- Case law provides a framework within which to determine the right outcome for a child and their custodial environment.
- Third-party assistance may be beneficial in preventing or resolving parental alienation issues.
Is Parental Alienation Recognised In Australia?
In Australia, parental alienation is an emotionally charged issue - often leading to an array of pre-court dispute resolution protocols.
These protocols are designed to give families time to work through issues and come to an agreement or at least have some ideas as to how to approach the court.
Before we explore relevant case law, it is important to define parental alienation - to provide some context for the discussion.
The term 'parental alienation' is not explicitly specified in the Family Law Act 1975 (Cth) however it can be and is recognized by the Federal Circuit and Family Court of Australia.
Parental alienation is often described as psychological abuse, estrangement, or preferred alignment, though these terms do not change the definition.
The above terms may not always be explicitly referred to by the court in regard to parental alienation, but in a custody case, the court will refer to various circumstances that may contribute to alienation; such as estrangement.
There have been multiple cases where the Court has referred to specific cases of parental alienation explicitly
Parental alienation occurs when one parent attempts to undermine the other parent's relationship with their children.
This can happen through various forms, such as having the children spy on the other parent, exclusion from family events or members, and involving the children in arguments.
This can have a severe impact on children, especially if it is left unresolved.
Case Law on Parental Alienation
In terms of case law on parental alienation, the High Court case of Cowling v Singh (2008) looked at an allegation of parental alienation.
In this case, the court ruled that if any form of alienation is found, then the court has to consider the living arrangements that would be in the best interests of the child.
Appealing to the High Court of Australia, a mother alleged that the father had been alienating her daughter against her for a decade.
In this case, the court noted that the mother was emotionally dependent on the daughter's affections and was also alienating the father from the daughter.
Breakwell (2008)
In the Family Court Case of Breakwell (2008), the judge noted that while there was evidence of parental alienation, the best interests of the child must be the primary consideration.
The father had been found to have alienated the mother from the children, but the court noted that this must be set against the mother's impact on the children's lives.
The court found that the mother's alienation of the father was not as damaging to the children as the father's alienation was.
The court ultimately found that the child should live predominantly with the father as he had been less dominant over the children and provided greater stability to the children.
Kinsella v Kinsella (2007)
In the case of Kinsella v Kinsella (2007), it was found by the court that the father had engaged in a campaign of alienation against the children.
He had misled the children about their mother, made false allegations about her parenting style, and was found to have ignored the children's psychological needs.
The court found that the father's attempt to alienate the children from their mother was unnecessarily damaging and ordered that the mother have sole parental responsibility.
Conclusion
When looking at the case law on parental alienation in the context of a custody dispute, it is important for the court to consider the impact of judicial decisions on the children's best interests.
As seen in the above cases, the court can determine that the best interests of the child require the father or mother to have sole parental responsibility, or it can order third-party assistance of some kind.
To ensure the best outcome is achieved, both parents should consider ways to work together - focusing on their child's psychological needs.
As the above case law on parental alienation illustrates, parental alienation is a complex and emotionally charged issue - one that requires the knowledge and expertise of an experienced family lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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