Child custody

What is Parental Alienation? 1024 683 Dorter

What is Parental Alienation?

What is Parental Alienation?

Parental Alienation is unique to families who have separated or who are having a parenting dispute. Parental Alienation occurs when one parent manipulates the relationship between a child and the other parent, for their own benefit, damaging the relationship between the child and the other parent.   The manipulator often sets out to destroy the relationship between the child and other parent by belittling and undermining the other parent. 

Parental Alienation results in the child actively rejecting their relationship with the other parent and refusing to spend time with that parent, for no apparent reason or justification. The child’s rejection usually reflects the attitude of the alienating parent, not the child’s own views, and can have devastating consequences on the child’s long-term emotional development.  It also has a devastating emotional impact on the parent who is separated from their child, which is often the aim of the alienating parent.

Common examples of conduct of an ‘Alienator’.

Parents, step-parents and/or grandparents can engage in alienating conduct. Some common behaviours include:

  1. Interfering with/monitoring communication between the child and the other parent;
  2. Deliberately speaking ill of the other parent in the child’s presence;
  3. Making unilateral decisions regarding the child’s long term welfare (eg moving residence or schools);
  4. Over-sharing unnecessary details of the separation with the child;
  5. Projecting their own fears and opinions of the other parent on to the child;
  6. Deliberately making the child unavailable to the other parent during scheduled times;
  7. Suggesting to the child, without justification or evidence, that the child has been the victim of abuse by the other parent.

Parental Alienation can be insidious. It can be difficult to detect the signs, or to differentiate it from other acts in a high-conflict separation. It is necessary to act quickly and obtain advice and help.

How and where to get HELP.

Steps should be taken quickly to address and stop the alienating parent’s conduct, to protect the child and the alienated parent. 

Fortunately, our Family Law system recognises the child’s right to have a meaningful relationship with both parents following separation, so long as it is in the child’s best interests. This means the child has a right to have both parents involved in their life, to the maximum extent consistent with their best interests.

When one parent alienates a child from the other parent, this is contrary to the child’s rights. Steps can be taken to ‘break’ this cycle, but timing is critical.

Our Family Law system provides different ways to protect children and the alienated parent. These include:

  1. Family Therapy;
  2. Counselling for the child, and the parent/s;
  3. Mediation and arbitration (Alternate Dispute Resolution);
  4. Court Orders.

If therapy, counselling, or Alternate Dispute Resolution are not successful, the Court can make orders to provide for the child to spend time with the alienated parent, and if appropriate, make orders that the child not spend time with the alienating parent for a period of time.

It is important to prioritise the health and welfare of your child. Whether you are concerned that your child is being alienated from you, or you are being accused of being an alienator, it is critical not to over-share your concerns or opinions with your child.

Ensure you obtain support from an adult network. Psychologists and family therapists are able to assist you through the process.

Seek legal assistance

Allegations of Parental Alienation should be taken seriously and help should be obtained promptly. Parental Alienation has a serious impact on you, your child and your relationship with your child. It also has an impact on your family law case. If you are concerned about Parental Alienation you should seek urgent assistance from professionals.

If you require advice about what steps to take, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@dorterfamilylawyers.com for a confidential discussion.

Dorter Family Lawyers and Mediators offers specialist family law advice in McMahons Point on Sydney’s Lower North Shore. Rebekah Dorter and Bronwyn O’Loan are experienced Family Lawyers working with Parental Alienation and are available to assist you.

 

Bronwyn O’Loan
Senior Associate

Rebekah Dorter
Principal

                                                                                                                

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Shared Parental Responsibility and Equal Time- Is there a Difference? 1024 683 Dorter

Shared Parental Responsibility and Equal Time- Is there a Difference?

Under the law, each parent has parental responsibility for a child who is under 18 years of age. This continues to be the case even if the parents separate or either or both of the child’s parents re-partner or re-marry.

What is parental responsibility?

Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children. This involves the parents having a say in the major decisions that affect a child’s life, including where the child lives, medical treatment, education and religion. In Australia, the Family Law Act 1975 (Cth) uses the concept of “parental responsibility” rather than “parental rights” in recognition that parental powers exist for the benefit of the child, and not for the benefit of the parent.

When a relationship breaks down, the law applies a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. This means that when making a parenting order, the Court is required under law to presume that it is in a child’s best interest for the child’s parents to have equal shared parental responsibility for the child.

Where there is no Court order, parents are able to exercise their parental responsibility independently or jointly and there is no obligation for the parent’s parental responsibility to be shared. However, when the Court makes an order for equal shared parental responsibility, the parents are required to consult with one another and make decisions about major long term issues that affect the child jointly, unless the court orders otherwise.

The presumption of equal shared parental responsibility will not apply if there is evidence that a parent or a person who lives with that parent has abused the child or engaged in family violence (such as emotional, economic or psychological abuse). The presumption can also be rebutted if the court believes that shared parental responsibility is not in the best interests of the child.

It is important for parents to understand that the presumption of equal shared parental responsibility does not mean a presumption for each parent to spend equal time with a child. If the Court is to apply the presumption of equal shared parental responsibility when making parenting orders, then the Court will use that presumption as the starting point for considering whether it is practical to make an order for the child to spend equal time with each parent.

Will the Court make an order for equal time?

The court will only make an order for a child to spend equal time with the parents if the court is satisfied that:

  1. it is in the best interests of the child;
  2. it would be reasonably practicable for the child to spend equal time with each parent.

When making parenting orders, the child’s best interests remain the overriding consideration. When considering the best interest of the child, the Court will look to various factors set out in the legislation, including, but not limited to:

  1. the benefit to the child of having a meaningful relationship with both parents;
  2. protecting the child from harm;
  3. views expressed by the child; and
  4. the extent each parent has participated in decisions affecting the child or spent time with the child.

When considering whether a proposed order for equal time is “reasonably practicable”, the Court must have regard to:

  1. how far apart the parents live from one another;
  2. the parent’s current and future capacity to implement such an arrangement for equal time and the impact of such an arrangement on the child; and
  3. other matters the Court considers relevant.

If the Court decides not to make an order sought for equal time, the Court must consider whether it would be in the child’s best interests and reasonably practicable for the child to spend “substantial and significant time” with each parent. An order for substantial and significant time will often involve an order for the child to live with one parent and spend designated time with the other parent that will include days that fall on weekends, weekdays and other such time as would allow the parent to be involved in the child’s daily routine and significant occasions.

If the Court decides that neither equal time nor substantial and significant time are in the best interests of the child, then the Court will use its discretion to make orders as to arrangements for the care of the child, considering the best interests of the child as provided for in the legislation.

Key takeaways

  1. Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children.
  2. Under the law, each parent has parental responsibility for a child who is under 18 years of age.
  3. Where asked to make parenting orders, the Court will presume (unless otherwise rebutted) that it is in the best interest of the child for their parents to have equal shared parental responsibility for the child.
  4. Equal shared parental responsibility does not mean the child spends equal time with each parent. There is no presumption for equal time under the Family Law Act 1975 (Cth).
  5. When considering the time that a child should spend with each parent, the Court will consider the best interests of the child as paramount, and also whether such an arrangement is reasonably practicable.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.  If you have recently separated or have any questions about your current situation, please call us on (02) 9929 8840 or email us at hello@dorterfamilylawyers.com to discuss your matter.

Lauren Sanderson
Solicitor

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

How Important are my Children’s Wishes in Deciding Issues in Family Court? 1024 683 Dorter

How Important are my Children’s Wishes in Deciding Issues in Family Court?

“What if my child hates the other parent?”

“What if my child wants to spend more time with the other parent?”

“What if my child is not mature enough to make decisions about where they should stay?”

Family Lawyers hear these questions all the time when they assist in resolving parenting disputes. These questions boil down to a seemingly basic general question – how much weight does the Court give to the views of children in making decisions about them? The answer to this seemingly simple question can be complicated, especially when the child’s parents do not agree about the capacity of the child to make decisions.

Balancing the Child’s Right to be Heard with the Best Interests of the Child

The Family Law Act 1975 (Cth) takes a child focused, rather than a parental rights approach to decision making about a child. This means decisions by a Court use the best interests of the child as a paramount consideration. In determining the child’s best Interests, one of the factors to be considered is the views of the children taking into consideration the children’s age and level of maturity. However this must be balanced with a number of other considerations, including the benefit to the child of having a meaningful relationship with both parents.

How the Court Considers the Views of the Child

The problem with using the views of the child to determine their bests interests was considered by the High Court in Bondelmonte & Bondelmonte [2017] HCA 8. In this case, the mother allowed her two boys to travel with their father to New York (having previously settled their parenting arrangements in 2014). Not long after their departure, the father’s solicitor informed the mother’s solicitor that the father had decided to live indefinitely in the United States and the children will remain with them. The father claimed that the boys had expressed a desire to remain in New York.

The High Court was unimpressed by the father’s actions and ordered that he return the children to Australia. The court held that the views of the child were “but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”. The Court emphasised that the importance of the child’s views in a given case may depend on factors such as the age or maturity of the child, especially given a child may not appreciate the long term implications of separation from one parent or the child’s siblings. In addition, the Court considered important the lifestyle the father was offering them in New York exerted an influence over the children’s choices, and that the views expressed by them had been ‘contrived’ by the father.

3 Key Points to Take Away

  • Your child has a right to have their voice heard in relation to decisions that will be made about them
  • In deciding what weight to give the views of the children, the Court will look at the individual facts of each case – the child’s age, maturity, and the influence of parents over the children are all relevant.

This means every case is different, and it important to seek legal advice in order to get the full picture.