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Mother loses children for anti-dad stance - Case Law Reference?

Does anyone know the full judgement / case law with regards to this decision?

Thanks.

The Australian
31 March 2009

Mother loses kids for anti-dad stance
By Caroline Overington

Two children who have been in the care of their mother since their parents separated in 2005 have been sent from Hobart to live with their father in Melbourne after the Family Court (Irish & Michelle; PDF attached below) heard the mother encouraged them to have "negative" feelings about their dad.

The two children - a girl, aged nine, and a boy, aged seven - had been struggling with "change overs" between parents, saying things such as "I don't want to go" and "I don't have to go" when their father arrived in Tasmania from Melbourne to collect them for access visits.

The court found the mother did not discourage them from saying these things, and did not encourage a positive relationship between the children and their father.

The children told counsellors they were angry their father had left their mother, and lived with his new girlfriend in Melbourne.

Family Court judge Robert Benjamin said the children "clearly wanted" to stay with their mother, who had been their primary carer since birth, and acknowledged the "disruption to the children's family unit and their stability if they were to move to Melbourne to live with their father".

But Justice Benjamin said the "mother could see what was happening at change overs and did little abut it".

"I have concerns that this will continue in the future," he said.

"Sadly, this is a case where the children may be at unacceptable risk of psychological harm if they remain with the mother."

Justice Benjamin said the girl, B, was becoming "emotionally estranged from her father" and was at risk of "psychological damage, if not psychiatric damage" if she was not allowed to have a relationship with her father.

The decision was made under new laws, introduced by the Howard government, that require the Family Court to adopt the presumption of "shared parenting" when dealing with children of divorce.

The Australian last week reported on new data that showed fathers had a much better chance of getting access to their children by going through the Family Court than they did by negotiating directly with their ex-wives.

A review of recent cases found fathers were given majority custody in 17 per cent of litigated cases, compared with just 8 per cent of cases settled directly with their ex-partners.

The Australian has also reported the case of NSW deputy fire chief Ken Thompson's wife, who fled Australia with their son Andrew, saying the Family Court had become biased towards fathers.

In the case of the brother and sister sent from Hobart to Melbourne, Justice Benjamin ordered the children be removed from their mother's care, and to see her for school holidays and Mother's Day. She is also entitled to a phone call "each Sunday between 6.30pm and 7.30pm".

The court took evidence from a psychologist who helped facilitate a change over between the parents on June 27 last year.

When the time came for the children to get into the car with their father, the girl "started what can only be described as a mantra, or a chant".

"She kept repeating: 'I don't want to go' and 'I don't have to go'," the psychologist told the court. "When her father greeted her, she (said), 'I hate you'.

"The father showed me photographs of the last visit he had with the children, where they were cuddling, laughing and clearly having a very happy time."

The father put the children in the car, but B "was trying to climb out the window" while her brother was "distressed and was hitting and kicking".

B gave the psychologist a list that said: "I don't want to go with my father because he tells lies, he hurts me, he left our family and he has got a girlfriend and I don't like her."

"These children are slowly indoctrinated into believing that their father is cruel and unkind and likely to hurt them, when this is not the case," the psychologist said.


Click for PDF (71KB) of the article: Mother loses kids for anti-dad stance
We have requested details of the judgement from the Media Advisor yesterday. If it is a published judgement we should get it okay but if not we will have some issues in getting it for review. The judgement along with some others clearly signals that the Judges in the Family Court are looking at the Family Law Act in a much more holistic way and taking up the Act in the way it was meant to be delivered as detailed in the explanatory memorandum. (Located in our library. Use the search facility).

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Irish & Michelle [2009] FamCA 66 - 6 February 2009

Here is the judgement with 240 reasons and 34 pages long.

http://www.austlii.edu.au/au/cases/cth/FamCA/2009/66.html

I hope this holds up, and that this case gets a lot more air time.

Attachment
Irish & Michelle [2009] FamCA 66 - 6 February 2009
The judge said
77. In his report the single expert relied upon a paper from Dr Johnson and in his report discussed Gardner's theory of Parental Relation Syndrome.

78. The term Parental Alienation Syndrome (PAS) and has not been generally accepted as a syndrome. In 1999, the Family Court established a taskforce to study children who had become estranged from one of their separating parents. The results of the research indicated that childrens rejection of a parent can be for multiple reasons. The research of Dr Janet Johnson and others rejected Gardners theory of PAS and found no convincing evidence to support his one-dimensional theory that an alienating parent is primarily responsible for a childs alienation. Similarly, they did not find evidence that family abuse was primarily responsible for a childs rejection of a parent.

The research of Dr Johnston and others is widely accepted in Australia and Dr Gardners PAS has been widely discredited. The Court has rejected or alternatively has not accepted PAS as a concept and in the case of C & C (2004) FamCA 708 Justice Moore described the term Parental Alienation Syndrome as a descriptor unsuited to the discussion of complex dynamics involving at least three people and it is further unsuited because as a diagnosis it could lend itself to automatic or prescriptive treatments. Her Honour also observed at paragraph 84 it is more that serving the interests of a child requires a solution to difficulties confronting that child to be tailored after considering a whole range of factors specific to that child, including but by no means limited to the childs age, stage of development and temperament. One size does not necessarily fit all.

79. In terms of the question of Parental Alienation Syndrome I have had regard to the decisions of the Family Court in Lane and Arthurs (2006) FamCA 87, Parker and Elliott (2003)FamCA 990, Summers and Nathan (2005)FamCA 1406 and in particular in this later case where the Court noted that the evidence of parental alienation had been previously recognised as a substantially established area of knowledge however concluded that in light of the Reference source: (reference) articles and a large body of recent literature, I am not persuaded that parental alienation syndrome has been established irrevocably within a substantial established area of knowledge allowing for receipt of expert evidence.

80. In cases such as this I am required to make an order that promotes the children's best interests taking into account their relationship with their parents, a change of residence or some other order.
This suggests that there is a difference in perspectives within the court. By drawing on the observations of this judge the contrarian judges could be convinced in the alternative. There is no substitute for a good report from the experts. Thoughts in regard to that are highly valuable.

The report writers in this case have effected their responsibilities in providing the court with more informative material than others that I have read.

Dissassembling this judgement and extracting the facts related to specific issues upon which the judge relied to make the decision is a process with value. Discussion on the site in reference to those points might yield good material for future cases.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
It seems incongruous for the parliament to elevate facilitating the relationship with the other parent to primary consideration while the court refuses to recognise the existence of PAS? Perhaps the "McIntosh" repackaging/renaming approach is required.
Gardner's theory of Parental Relation Syndrome and Dr Janet Johnson's arguments against Gardner's theory appear to be a good place to set out the issues that aren't agreed to as against those are agreed to. Engaging an expert witness on those disagreed issues might in the long term cause the court to reconsider as to why Johnson's reasoning should be relied on.

Bringing Sense to Parental Alienation: A Look at the Disputes and the Evidence http://www.rgardner.com/

This article, published in a prestigious law journal, is Dr. Warshak's most thorough examination to date of different ideas about pathological alienation and its status in custody litigation. It examines a continuum of opinions about parental alienation with reference to relevant scientific literature and is an attempt to introduce rationality in an area that suffers from polemics and politics.

Professionals agree that children can become irrationally alienated from a parent but disagree about what to call this problem and about how to conceptualize it. Dr. Warshak proposes that a conceptualization that emphasizes the influence of the favored parent, such as Parental Alienation Syndrome, has intellectual and scientific roots in developmental and cognitive psychology, particularly research on children's suggestibility.

A conceptualization that emphasizes the role of multiple interrelated factors enjoys support in family systems theory that regards children's problematic behavior as an expression of family-wide dysfunction. The article reviews available studies and concludes that the current status of research supports the prevailing opinion among mental health professionals that the court's authority is a key element in successful remedies of severe alienation.

The article describes the possible advantages of the term "pathological alienation" and offers other suggestions for circumventing unproductive disputes and focusing on the welfare of families. This article is essential for any parent, attorney, or mental health professional proposing or opposing evidence dealing with parental alienation. 29 journal pages. This article has to be purchased before being shared?

Further references:

ERROR: A link was posted here (url) but it appears to be a broken link.
http://www.parentalalienation.com.au/pages/sharedpscycotic.html

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
After reading the experts report that was used as a guide to the effects they saw from the children you could easily see there was a form of alienation in progress.

It would be hard to call it alignment, pathological or even syndrome with the course of events spanning over years.

Realistically there is an enormous amount of confusion about how best to describe the conditioning of children to effect control to ensure vindictive revenge by the instigator of such depravity.

Seeing as pathological and syndrome are effectively related and are bound by a medical condition perhaps more concentration needs to be on what the true problem is, although control by torture referencing Stockholm Syndrome does come to mind along with Fatigue Syndrome which could be associated with what children suffer when put into this position of abuse no-one would dare consider using them as cause and effect.

In this point of time the best we can hope to put forward is " not facilitating the relationship " perhaps this becomes the interjection used to express alignment and alienation more effectively.

It seemed to work in this case.

A Note on the Irish & Michelle Judgement

A Note on the Irish & Michelle Judgement (Family Court Australia, 66, 6 February 2009)
By an SPCA Author

This case has been unfairly described as "a win for fathers."  It's nothing of the sort.  It's a win for children.  Faced with the evidence that was revealed to Justice Benjamin, any decent judge would have made the same decision, even before the shared parenting reforms came into force.  Indeed, it was not a case about shared parenting.  It was a case where the custody of the children had to be changed for their protection.

Those who describe this as "an amazing decision" should read Justice Benjamin's careful judgement.  He was scrupulous in his considerations of all the criteria required of him by the Family Law Act with regard to the best interests of these children.  He fairly assessed the characters and capacities of both mother and father.  He sensibly accepted the evidence of two experts regarding the welfare of the two children, a girl of nine years and a boy of seven.

The evidence before the judge was alarming.  He found that the mother was not simply making it difficult for the children to have a meaningful relationship with their father, she was poisoning their young minds to cause them to hate him and to be reluctant to spend time with him.  It was clear to the judge that the mother was indoctrinating the children with "devastating effects" on them.  The girl was in therapy, and His Honour found that the mother was in need of psychological assistance.

Moreover, he concluded that there was an "unacceptable risk" that the emotional damage to the children would continue if they remained in their mother's care, and that occasional contact with their father would not be enough to ameliorate this damage.  Indeed, he said that, in their mother's custody, there was little likelihood that the children would continue to see their father.

The article in the Australian (2 April 2009) was fair in most respects.  But on one point, it was seriously short of the mark.  The reporter wrote that in this case there was no suggestion of physical abuse or neglect.  True, but there was clear evidence of emotional abuse.  Here was a mother who was emotionally abusing her children.  To prey on young minds in such a way as to cause them to hate someone who is good and worthy, to so destroy their innocence in human relationships, is vile abuse.  It's amazing that many commentators equate violence only with physical assault.  Serious emotional abuse can be more harmful.  A child does not begin to hate a parent for no reason at all.

As a Canadian judge recently said: "Hatred is not an emotion that comes naturally to a child.  It has to be taught."

There was another significant element in this case which has been ignored by its critics.  There had been a twelve-week trial period when the children had lived with the father and visited their mother.  There was evidence before Justice Benjamin that this had been successful for all parties.  The girl's emotions and behaviour had become settled.  The boy had done well.

Importantly, the communication between mother and father had improved.  In other words, a better parenting arrangement had led to less conflict between the parents, all to the benefit of the children.  This situation, well supported by overseas research, illustrates the nonsense of the view that the cure for conflict is less contact.

Following the trial period, the children returned to their mother's care.  The evidence before the judge was that their situation had again deteriorated.  The girl, in particular, had become unsettled.

Faced with all the above and more, what could a judge do?  The evidence was overwhelming.  This was a correct and wise judgement and result, whether viewed in light of the new Act or the old.  It will be tragic for these children if the orders are disturbed on appeal.  Another outcome would be outrageous.

Thanks

Matrix.

I have to thank you very much for your above comments.

While not trying to invite sympathy, I'm in the very deep end of a very similar situation to this case currently with my children.

Your comments and wording seem to capture some very important points.

I hope you don't mind but as well as showing my lawyer the 34 page history of this judgement, I would also like to show him some of your comments.

Thanks again.

Helping and Benefitting Our Children

Hi GR8M8.

I did not write those notes; they were written by one far more exprienced in law than myself.

I'm sure that person would have be willing for to you take those comments to your lawyer, if you believe they are useful and will help and benefit your children.

To facilitate this, I am attaching the notes as a PDF document you can download and use.

Matrix

Attachment
Irish & Michelle FCA 66, 6 February 2009 Notes
matrix said
Hi GR8M8.

I did not write those notes; they were written by one far more exprienced in law than myself.

I'm sure that person would have be willing for to you take those comments to your lawyer, if you believe they are useful and will help and benefit your children.

To facilitate this, I am attaching the notes as a PDF document you can download and use.

Matrix

Attachment
Irish & Michelle FCA 66, 6 February 2009 Notes
Thankyou Matrix, are you able to provide the author and his/ her interest in this case.

Thanks again.
Thank you for this interesting discussion. I was very interested to read the reasons for judgement after reading the original article in The Australian recently.

Matrix - some great points. "Hatred is not an emotion that comes naturally to a child. It needs to be taught" is very accurate.I wonder what the prevalence of PAS is, it would be interesting to know, as it is something regularly discussed in the Relationships Australia post separation parenting course.

I wonder too what the best approach is for the parent being 'alienated'. To hear your child screaming and crying that he/she hates you at the mere suggestion of speaking to you is an extremely trying position to be in.

Especially when the alienating parent is 'encouraging' the child to speak/spend time withyou when in the presence of the psychologists and doctors but goes out of their way to prevent access by hiding the child,making the child scared of you and encouraging them to tell you how much they hate you.

Thanks again for the discussion.
How much longer can the courts ignore PA or PAS? I was under the impression that we tend to adopt the Canadian style of Family Law which does recognise PA and PAS. As do American courts. It seems incredulous that our system is denying the existence of this syndrome.

Well it was brought up in court but the psychologist or psychiatrist was disciplined by his peers for doing so. Surely it is a logical progression in children who have been alienated. Perhaps one day soon it will be a recognised syndrome as it is in some other Western Countries. For now alignment will have to suffice.
I think it should be more accepted as a real problem but it's not here for some reason. a lady working for the courts even said to me that PA, PAS, denigrating a parent constantly, trying to alienate a parent and even causing stress on a child by trying to find fault in the other parent will never be allowed on a form 4 and that it will never be viewed as abuse as it's not that serious an issue just a consequence of family breakdown - absolutely gob smacking that it's considered not a serious issue and that it's not abuse, children will get through it - wish there was somewhere to inform these sort of people more.
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