‘Parental Alienation’ in the Family Law System

26 APR 2021

 

Should we use Parental Alienation as a term at all?

This is the question that can tumble around the minds of lawyers, psychologists, and Judges alike. 

What does “parental alienation” mean? The least contested definition could be where ‘a child’s view of the rejected parent are unreasonable, negative feelings and beliefs…that are disproportionate to their actual experience of that parent.’ (Kelly & Johnston, 2001). 

The issue that arises here is, who decides what is ‘unreasonable’ or ‘disproportionate’? These are matters of interpretation, typically by Judges in the Federal Circuit Court or Family Court, and by Court experts such as psychologists and family consultants. 

Parental alienation is not accepted scientifically as a disorder or diagnosis in the Diagnostic and Statistic Manual of Mental Disorders (DSM V). It is not recognised in the International Classification of Diseases by the World Health Organisation. So, why do we use it? 

The term originated in the 1980’s, where lawyers and Courts in Australia were encouraged to be sceptical of parents seeking to reduce time with the other party, particularly where there was a claim of domestic violence or child abuse. 

There has been extensive debate in social science circles about parental alienation and the role it may or may not play. An American study by Joan Meier reported that where a parent raises concern as to parental alienation, Courts were two (2) times more likely to disbelieve claims of family violence, and four (4) times more likely to disbelieve claims of child abuse. 

This debate includes the question of whether false claims of ‘parental alienation’ give a platform to parties who exhibit coercive and controlling behaviours to continue those actions throughout the Court process. Second to this is the question of whether legitimate family violence then gets lost in the fog.  

The Joint Select Committee on Australia's Family Law System produced its Second Interim Report on 16 March 2021. Recommendation 15 was that all family law professionals, including Judges, undertake regular professional training around parental alienation, domestic violence, coercive control, complex trauma, and unconscious bias.  

The idea of parental alienation is a post-separation phenomenon and generally only raised in the context of the Family Law arena. Ultimately a lawyer or Judge will decide if it has occurred. It could be argued that there is a stigma developing around the term, much in the way of domestic violence, which is clouding the minds of those wanting to err on the side of caution and safety of the child. 

If you have any queries in relation to the above, or wish to speak to a friendly member of our family law team, please do not hesitate to contact our office on (02) 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.     

 

Posts you may find interesting

News

POSTED: 15 Nov 2021
Parties who are not married but have lived under the same roof for an uninterrupted period of two years are considered to be in a de-facto relationship. The Family Law Act outlines that to satisfy the threshold of a de-facto relationship, the parties must “have a relationship as a couple...
Read more