Two recent cases have highlighted the difficulty family law and the courts face when dealing with what has been labelled "parental alienation." At its highest, the term refers to a set of pathological symptoms where a parent, on an ongoing basis, denigrates or belittles the other parent, or some other significant person in the child's life, with or (usually) without justification. Dr Richard Gardner, American psychiatrist, first coined the term "parental alienation syndrome" in the 1980s to describe the condition as a psychiatric disorder or disease. Notwithstanding, the broader psychiatric community does not recognise the condition as a disorder or disease but, where found to exist, constitute behaviours consistent with parenting disputes generally. Further, where a child is found to have been alienated from a parent, the subsequent rejection by the child of the parent may have many causes, none of which may be at the hands of the primary carer.
In Irish & Michelle  FamCA 66, Benjamin J found that the subject child's "relationship with her father [was] being damaged." The reasons were varied but were predominantly directed at the mother, her reaction to the marriage breakdown, her family, and their encouragement of negativity by the children to their father. His Honour found that it was unclear whether the behaviour was intentional or otherwise, but the evidence clearly demonstrated the mother's lack of bona fides and that the mother was incapable of repairing the damage caused. His Honour ordered equal shared parental responsibility, but that the children live with the father and spend holiday time with the mother, the parties living in Tasmania and Victoria respectively.
In Wang & Dennison (No 2)  FamCA 1251, Bennett J found that
His Honour ordered equal shared parental responsibility, but that the children live with the mother and spend no time with the father.
What, if anything, reconciles these cases?
On a first blush reading, the similarities between the cases are quite stark.
Both parties lived in separate states – Victoria and Tasmania.
The children in Irish were 9 and 7, in Wang 11 and 9.
There was a high level of parental conflict during and after the breakdown of the relationships.
The mothers had made unfounded allegations against the father.
Both fathers were in new relationships which had focussed some of the mothers' behaviours.
The parties' applications in each cases were similar. The parties claimed that the care the other party provided the children was damaging or abusive.
In both cases, the ICLs supported the mothers' cases.
In both cases, the children did not want to spend time with the father and had threatened self-harm if forced to do so. All children were incredibly angry at the forensic process for making them reveal their wishes and believed they were not listened to.
A closer reading reveals the distinction. In Wang, the critical section 60CC factor was the wishes of the children. The court found the children to be "articulate, forthright and self-assured adolescents." In that context, the threat of self-harm if made to spend time with the father must have been a deeply troubling aspect to the family report writers that examined the children and the court. The court concluded that imposing a "solution" on the children without deference to their views would at least compromise their development and, possibly, inspire the threatened self-harm.
In Irish, the assessment of the children's wishes was quite different. Although the children were intelligent, the expression of their views was too "mature" and their opposition to spending time with the father seemed "orchestrated." Consequently, the court concluded that if "things continue this way, these children are going to learn that nobody can persuade them to do anything that they choose not to do. All they have to do is refuse to listen and to chant whatever it is they want." The court's further opinion was that the children needed professional psychological help, such help only available in the predominant care of the father.
Assuming that parental alienation can occur from a variety of reasons, including the manipulative (even pathological) behaviours of one parent, then whilst the focus, particularly in the US, has been to examine the parent's behaviour and not the resulting impact on the children, these cases clearly demonstrate that whatsoever the parental alienation, it is its effect on the children that is critical. People may read Wang and be horrified at the apparent injustice. Most of us can at least feel some sympathy for the father. But as children are the focus of parenting law in Australia, not the parents, then decisions like the ones discussed above may continue to be made. Some may argue that the decision in Wang is a court-inspired imprimatur to alienating parents. I would suggest Irish clearly shows that there is no such thing.
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