A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences

ABSTRACT

This paper presents insights into the history and current deployment of the concept of parental alienation in the Australian family law system. It begins in 1989, when an article on parental alienation syndrome was first published in an Australian law journal. It then traces aspects of the socio-legal and social science research, gender politics, law reform and jurisprudence of the following 30 years, paying attention to moments of significant change. The impacts of major amendments that emphasise the desirability of post-separation shared parenting outcomes in 1996 and 2006 are specifically considered. More recently, in 2012, reforms intended to improve the family law system’s response to domestic and family violence were introduced. The history reveals an irreconcilable tension between the ‘benefit’ of ‘meaningful’ post-separation parent-child relationships and the protection of children from harm. When mothers’ allegations of violence in the family are disbelieved, minimised or dismissed, they are transformed from victims of abuse into perpetrators of abuse – alienators of children from their fathers. Their actions and attitudes collide with the shared parenting philosophy. This is arguably an inescapable consequence of a family law system that struggles to deal effectively with family violence in the context of a strong shared parenting regime.

KEYWORDS:

• Parental alienation
• family violence
• child abuse
• family law

Acknowledgments

My thanks go to my friends and colleagues: Mary Keyes, Kylie Burns, Molly Dragiewicz, Heather Douglas and Nali Wardill and to Nicholas Bala, who generously provided me with the raw data for his presentation in Australia at the 2018 AFCC, Australian Chapter conference.

Cases

Johnson v Johnson [1997] FamCA 32

M v H [1996] FamCA 42

Mazorski v Albright [2007] FamCA 520

P v D [2001] FamCA 1197

Ralton v Ralton [2016] FCCA 1832

Ralton v Ralton [2017] FamCAFC 182

Summers v Nathan [2005] FamCA 1406

Legislation

Family Law Act 1975 (Cth)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Family Law Reform Act 1995 (Cth)

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The term ‘parenting cases’ is used in Australia whereas other jurisdictions use ‘custody’ or ‘children’s cases’.

2. For example, mandatory attendance at a type of mediation before proceedings can be filed, although there are exceptions to attendance.

3. This article uses ‘family violence’ to describe intimate partner violence and other violence in the family.

4. ‘ALRC’ refers to the Australian Law Reform Commission.

5. This was ascertained by searching for the terms ‘parental alienation’ and ‘parental alienation syndrome’ on the free online case data base AUSTLII. All possible family courts were searched – the Family Court of Australia, Full Court of Family Court, Federal Magistrates Court, Federal Circuit Court and Family Court of Western Australia.

6. Eg. Submission 1179 from Shane Kelly of the Richard Hillman Foundation, ‘Parental Alienation Syndrome and the Family Court in Relation to Joint Parenting’, lodged 8 August 2003.`.

7. ‘Friendly parent’ provisions focus on the willingness of parents to facilitate a relationship with the other parent.

8. In 2009 Arthur Freeman threw his four year-old daughter off a bridge in Melbourne in front of her brothers after his contact time was reduced by a family court the previous day (McGhee 2015).

9. ‘parent’ and ‘alienat’ within five words of each other.