Date: 18 March 2021 Time: 1:00 PM – 2:30 PM AEST Venue: YouTube Live/ ZOOM Speaker: Zoe Rathus AM of Griffith University Law School
On Thursday 18 March 2021, the Victorian Family Law Pathways Network - Greater Melbourne hosted a webinar designed for the legal profession focussing on the concept of Parental Alienation in the Australian family law system with Zoe Rathus AM. The event was an opportunity for members of the family law profession to consider the contradictions, collisions and the consequences that parental alienation has on the Australian Legal system in the context of Family Violence.
Zoe Rathus AM is a senior lecturer at the Griffith University Law School. She has published and presented widely on women and the law, particularly the family law system and the impact of family violence on women and children. Zoe commenced in private practice in 1981 and became coordinator of the Women's Legal Service in 1989 - where she then worked for 15 years. She has been a vocal advocate for legal system reform for nearly 40 years. She is currently Chairperson of the Immigrant Women's Support Service and a member of the Queensland Law Society Domestic Violence Committee. Zoe has received a number of awards, including an Order of Australia in 2011 for her services to women, the law, Indigenous peoples and education.
Parental alienation is often a topic of debate in the legal system. There seems to be no one-set definition of what it encompasses. Given that its meaning rests on the negative feelings experienced by the child in comparison to the actual experience of that parent, it requires interpretation by an expert. Presently it is not recognised as a legitimate disorder or diagnosis, with its existence being questioned by critics. Parental alienation is viewed as a post-separation phenomenon that sits at the intersection of social science and family law. In relation to determining whether parental alienation has taken place, a social science expert is invited to give evidence collected from the statements of both parents, which in turn is used by the judge to make the final decision as to whether it has taken place.
Parental Alienation first entered the sphere of Australian law by Dr Ken Byrne who suggested that while some claims of child abuse in custody cases were legitimate, many more were manifestations of parental alienation syndrome in charges of abuse. Following this, the Family Law reform Act created a tension as there was conflict between lobby groups that represented women experiencing domestic violence and father’s right groups. The Act resulted in woman having to send their children to unsupervised contact visits to men who they believed were unsafe which was problematic. Women were often told not to raise violence as an issue as it might have resulted in their children being taken away from them. Fathers were known to raise parental alienation in a more tactical manner by contending that they were the victims of parental alienation which resulted in mother’s coming under scrutiny.
In terms of case law, P v D was one of the first cases that accepted expert opinion on parental alienation. The judge expressed concerns of long term consequences of a child staying with the father. Moreover in 2003 the Joint Custody Inquiry provided terms of reference where spending equal time with each parent was a presumption that was very central to the injury. Following this, the Shared Parenting Act 2006 created new tensions as there was a presumption that ESPR is in the best interests of the children whereas primary considerations such as protection from harm was given less weight than the benefit of meaningful relationship with both parents.
Reports also found that domestic violence and child abuse were more prevalent when ESPR arrangements were put in place. Joan Meier’s study stated that when father’s raised parental alienation it has a significant impact on whether the mother’s claims of domestic violence and child sexual abuse were to be believed. The QUT Research team also found that when parental alienation were raised, claims are child sexual abuse were less likely to be believed. This was because parental alienation is seen as a post-separation concept, therefore domestic violence and child abuse can potentially be seen as a past event and not so relevant which can be problematic in determining custody.
The event concluded with some questions and comments by the audience members revolving around parental alienation and what is a better approach that can be adopted by the courts. Zoe provided the following responses to the questions:
Question: Is there a general approach that court will take when there is a finding of parental alienation?
Answer: Not likely to have a general pattern. However this can be a good thing as courts need to be flexible and decide on case by case basis. Factors that are taken into account are the expert’s opinion and the judge’s view on the topic and case at hand. There is a research needed to see what has happened in court when parental alienation has been brought up.
Question: What’s a better term to use parental alienation?
Answer: Post-separation domestic violence should be used as what is technically happening is that Fathers are trying to destroy the relationship between the victim (woman) and the child.
Question: Does there need to be a legislative intervention in relation to parental alienation?
Answer: It can be dangerous as parental alienation can be seen as a form of abuse used by the father’s to support their agenda and play the victim.