Divorce & family law

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.

Fast-Tracking Family Law Matters 1024 605 Dorter

Fast-Tracking Family Law Matters

IN THE NEWS:  Fast Tracked Family Law Matters

“Women’s Economic Security Package to assist women exposed to family violence and streamline the Court service to couples with property pools under $500,000.”

In November 2018, a report provided by the Women’s Legal Service Victoria, identified a procedural roadblock preventing parties from accessing justice and reaching a timely, cost effective resolution in the Federal Circuit Court of Australia.

The report from the Women’s Legal Service Victoria appealed for a “small claims” stream in the family law system. 

The response to the report from the Women’s Legal Service Victoria was the creation of a new “pilot program” for some family law matters, namely those with a net property pool of $500,000 or less (including superannuation). Pursuant to Practice Direction 2 of 2020, from 1 March 2020, these cases, known as “Priority Property Pools under $500,000 Cases” or “PPP500 Cases” will be effective.   

The purpose of this new stream of family law matters is twofold, namely: –

  1. To assist women who have been the victim of family violence by providing a timely, cost effective route to resolution their family law dispute; and
  2. Ensure families, with limited financial assets, do not exhaust these assets on legal expenses.

Purpose of the Program

Chief Justice Will Alstergren, the head of the Family Court of Australia and Federal Circuit Court, described the pilot program as improving “access to justice”.

The report from the Women’s Legal Service Victoria observed that there is a significant reluctance from women who have experienced family violence to pursuing in Court, their share of family assets. This reluctance is usually coupled with exposure to financially controlling behaviour by their spouse during the relationship.

The pilot program aims to assist women who have been subjected to family violence or financially controlling behaviour during their relationship by assisting them navigate the family law system, provide them with access to efficient alternate dispute resolution processes and minimise the animosity in proceedings.

The program also identifies that parties to family law proceedings, where the asset pool is not significant, would incur a small fortune in legal fees. The program seeks to reel back the legal costs incurred and appropriately match legal fees with the difficulty and issues in the matter.

Who Does the Program Apply to?

To be classified as a PPP500 Case, proceedings must be commenced in the Federal Circuit Court of Australia, seeking an alteration of property interests for matrimonial or defacto assets.

It must also meet the following criteria: –

  1. The value of the net assets of the parties (including superannuation) is less than $500,000; and
  2. There are no companies or other commercial entity such as a family trust, company, or SMSF, that requires a further expert valuation; or
  3. The Court makes a declaration that the matter is assigned as a PPP500 case.

A PPP500 matter is unable to be established if either party is seeking Orders in relation to parenting, child support / child maintenance or enforcement of Orders.

Steps in a PPP500 Case

An emphasis on “Registrar-Led” resolution was a major focus of the PPP500 Case program.

There are six (6) primary steps in the PPP500 Program, of which the first four (4) are Registrar-led and the last two (2) are Judge-led: –

  1. Before the First Court date, preliminary orders will be made by the Registrar in chambers in relation to the balance sheet and any preliminary valuation issues;
  2. The first Court date before a registrar, at which time, the balance sheet will be finalised and the matter will proceed to a conciliation conference, private mediation, Legal Aid conference or other alternate dispute resolution process;
  3. The parties engage in an Alternative Dispute Resolution Process;
  4. The parties attend the Second Court date for further directions, only if it was not settled during step 3 above;
  5. The parties have a Procedural hearing before a Judge in preparation for a Final Hearing and the Court will give directions in relation to the filing of evidence; and
  6. Final hearing (either Less Adversarial Trial, Trial on the papers or traditional Final Hearing).

The streamline program provides parties to family law proceedings with a prompt, cost effective and amicable regime to resolve disputes without the need for acrimony and prolonged proceedings.

If you have separated from your spouse or partner and the above applies to you, please contact Dorter Family Lawyers and Mediators to obtain assistance from one of our family lawyers.  We are based in North Sydney and are available to assist you with your property settlement.

By Luke Meehan
Dorter Family Lawyers & Mediators Solicitor

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.

Should we mediate our family dispute? 1024 695 Dorter

Should we mediate our family dispute?

Mediation is a quick, economical and effective means of resolving family law disputes regarding property and/or custody.

Should we mediate?

If you and your ex-partner are experiencing conflict and wish to resolve your dispute with less intervention from a third party, mediation is a forum which ensures you and your ex-partner drive the process and the outcome.

What is Mediation?

Mediation is a negotiation process in which an independent third party, known as the mediator, assists parties to identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement which reflects the key objectives of the parties.

What are the benefits?

Mediation:

  • offers parties more control over the outcome;
  • is less formal and less intimidating than appearing in Court; and
  • provides an efficient, speedy and significantly less expensive method to empower parties to settle their matter.

Settlement of a dispute through mediation can assist to preserve a working relationship and is, therefore, particularly beneficial for separated parents who will continue to communicate and care for their children together.

Mediation can also be helpful if there is the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision, or if there is a possibility that a judge’s decision will not end the dispute.

Confidentiality

Confidentiality is the hallmark of mediation. As far as permitted by law, all discussions during the course of a mediation are private and confidential. If a matter is in Court, the judge is not informed of any information disclosed during the mediation.Do we mediate?

Dorter Family Lawyers

Rebekah Dorter is an Accredited Mediator with LEADR (The Resolution Institute), an international organisation promoting mediation for conflict resolution. In her role as a Mediator, Rebekah acts as a neutral facilitator by asking questions, encouraging open discussion, offering different perspectives, expressing issues in alternative ways and presenting her view as to how a Court might determine the issues.

Parties can attend mediation alone, or with their legal representatives present.

If you would like to book a mediation or would like to make further enquiries, please call our office on (02) 9929 8840 or email rebekah@dorterfamilylawyers.com or sabrina@dorterfamilylawyers.com

Three common questions about family law 1024 683 Dorter

Three common questions about family law

How do I get a divorce?

Australia operates under a ‘no fault’ divorce regime. This means that there is only one ground for divorce, being the ‘irretrievable breakdown of marriage’. This is proven by there being a period of 12 months separation between the parties to the marriage. This separation can occur even while the parties are still living under the same roof. After these 12 months have passed, either party, or the parties jointly, can successfully apply to the court for a divorce.  There are important consequences to obtaining a divorce, however, and you should seek legal advice before proceeding.

How do I obtain a fair property settlement arising from my marriage or de facto relationship?

In broad terms, in Australia property settlements are determined by following a 4 step process:

Step One involves identifying and valuing the pool of assets between both parties to the relationship. This includes all assets, including houses, cars, business assets, trusts, and superannuation.

Step Two involves assessing the contributions of each party to obtaining, conserving or maintaining the property pool. Contributions do not only include direct financial contributions, but also include indirect financial contributions (such as offering ones’ house as security for the purchase of other property), non-financial contributions (such as assisting with renovations on the matrimonial home), homemaking contributions and parenting contributions. Based on these contributions, an initial percentage division of the property pool determined in Step 1 will be determined.

Step Three involves considering whether the division contained in step 2 should be varied on the bases of a number of different factors, including the age and health of the parties, the financial resources of the parties, the care of children, eligibility for social security benefits, the earning capacities of each of the parties, and any other factor relevant matter.

Step Four involves determining whether the division of the asset pool is just and equitable in all the circumstances. Every relationship is different, meaning what is just and equitable in the circumstances differs in every case.

It is important to seek legal advice as each of the steps in this process are multifaceted and can be complex, depending greatly on the individual circumstances of each case.

How do I know how to divide time with a child between parents?

Australia takes a children’s rights approach to family law, rather than a parental rights focus. This means that in any decision about a child, the best interests of the child must be a paramount consideration. The primary considerations in determining the best interests of the child are the benefit to the children of having a meaningful relationship with both children’s parents and the need to protect the child from being exposed to abuse, neglect, or family violence. There are, however, a number of additional considerations, such as the views of the children (depending on their maturity), the ability of the parents to cooperate, and other practical considerations.

Every family relationship is different, so it is important to seek legal advice to know the best solution for you when it comes to family breakups.