NSW Family Law - Fear of the Work Alienation in Courts?

[Shimmyshake]

I've been reading a bit from an American Dr. Warshak on Alienation.

It seems the US is way ahead of us in talking about these issues. Why?

They even have programs designed to reunite.

Here is a Harvard Dr talking about the same issues. This is a must watch if you are interested in this topic. There is also a 40-minute version on YouTube. This one is just 7 minutes.

Seriously, I've been through the system and my experiences are that they'll call it everything except alienation. Or, they will simply miss the whole thing and get it backwards like Dr Miller discusses.

In my case, they got it backwards for a good while but then a smart judge caught on to the mistakes of the Family Report Writers and called it for what it was. Still didn't use the word 'alienation' mind you!

Can someone explain the fear associated with this word in Family Law?

 

[AllForHer]

The reason it's a 'dirty word' in Australian Courts is because the APA hasn't recognised Parental Alienation Syndrome as an actual psychological disorder yet. On the upside, a rose by any other name still smells as sweet - or in this case, a 'failure to support and encourage the children's relationship with the other parent' still smells a lot like 'parental alienation'.

 

[Shimmyshake]

Yes I hear you, but it still makes no sense. A syndrome has nothing to do with it. Or at least it shouldn't either way. Weird system we have here.

 

[AllForHer]

Well, most (but certainly not all) civil matters in court generally have to have a consequence in order to be actionable. Acts of alienation are one thing but if they're having no discernible impact on the child (which is what the 'syndrome' part is of Parental Alienation Syndrome is), it's difficult first to prove they're happening, and second to prove something needs to be done about it.

I don't disagree that this is something that requires more attention from the courts, but reform is a slow-moving machine. I would say more progress has been made in the past two years than it has in the past decade, which is a good start in a very archaic system.

 

[Shimmyshake]

Yes it is a slow moving machine. I suppose I am still stuck on the syndrome bit. It's like saying we won't really call it 'child abuse' if a dad hits a kid because we are debating the long term effects and whether it will become a 'syndrome' or not. Sounds a little silly when I say it that way.

Even when proved, the courts are still reluctant to make real and lasting changes. All the alienator has to say is "I have learned from being called out'. And then when court goes away (because nobody can keep them involved forever) the same behaviours manifest once again. At the end of the day, assuming that the court actually has the power to change a real alienator will do nothing more than lead to resentments. Realistic expectations are the key. So back to the start...a slow moving machine.

 

[sammy01]

I don't much care for 'syndromes' in a sense it is making a medical / diagnosable excuse for crap behaviour, but the family law act does say something about the preparedness of parents to foster a relationship between a child and both parents. And there are cases where residence of kids has been reversed, that is the alienator gets the kids taken away as a consequence of not following orders.

So nope, the court can't force a parent to stop being a twit but the courts can make determinations that have a negative consequence for parents whose behaviour ain't good.

 

[Shimmyshake]

I don't much care for 'syndromes' in a sense it is making a medical / diagnosable excuse for crap behaviour, but the family law act does say something about the preparedness of parents to foster a relationship between a child and both parents. And there are cases where residence of kids has been reversed, that is the alienator gets the kids taken away as a consequence of not following orders.

So nope, the court can't force a parent to stop being a twit but the courts can make determinations that have a negative consequence for parents whose behaviour ain't good.

Hi Sammy

Do you know cases where the alienator get the kids taken away??

 

[sammy01]

Mine. It didn't happen through court though. I have a male work mate who has sole parental responsibility for his 4 kids. The ex played all the stunts, including accusing him of sexually abusing the kids.

Yes,I believe it does happen and I often hear of the idea of the friendly parent principle. In short, the parent who demonstrates a preparedness to not be an idiot gets a better result.

 

[AllForHer]

So, for discussion's sake...

Prior to amendments made to the Family Law Act in 2011, section 60CC(3)(c) referred to the consideration of the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. In lay man's terms, the Court could consider issues of alienation when determining what's in the best interests of the child.

In December 2011, the Family Law Legislation (Family Violence and Other Measures) Act removed that wording and replaced it with the current consideration, which is;

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;​

Since then, the aspect of willingness to encourage a child's relationship with the other parent isn't explicitly referred to at all in the Family Law Act 1975, but the Court was still referring to it as a consideration as recently as October 2015. Except in special circumstances, legislation is not meant to apply retrospectively. Thus, for any parenting proceedings filed prior to December 2011, the Court still explicitly considered the willingness of each parent to support and encourage the child's relationship with the other parent - read, each parent's capacity not to alienate the child from the other parent.

So, does the Court still take this consideration into account, even if it's not explicitly stated in the legislation anymore? Relevantly, the short answer is yes.

The Full Bench of the Family Court of Australia canvassed this in Jollie & Dysart [2014] FamCAFC 149 (15 August 2014) whereby it stated (in summary) that just because a judge continues referring to the willingness of a parent to encourage a relationship with the other parent as former section 60CC(3)(c), does not mean that consideration is irrelevant or incorrect or cannot be considered under section 60CC(3)(m).

Here's a list of cases that take into consideration the 'willingness and ability of each parent' to facilitate a child's relationship with each parent: AustLII Results - "willingness and ability of each parent "

 

[AllForHer]

Just for interest's sake, have a read of this case from the FCC: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/657.html

It's interim only, but gives a good idea of the Court's approach to alienation.