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«KEYNOTE: Outlook for Family Law Practitioners in 2011-12 1. EMERGING TRENDS IN PARENTING CASES A) ALIENATION AND ENMESHMENT Parental Alienation ...»

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Family Law Summit - Brisbane

8 June 2011

Paul Fildes

Taussig Cherrie Fildes

KEYNOTE:

Outlook for Family Law Practitioners in 2011-12

1. EMERGING TRENDS IN PARENTING CASES

A) ALIENATION AND ENMESHMENT

Parental Alienation

Definition

A child's campaign of denigration against a parent that results from 'programming'

or 'brainwashing' of the child by the other parent.

Background An American psychiatrist, with no background in child abuse, Richard Gardner, propounded the "parental alienation syndrome" (PAS) theory in the mid-1980's.

According to Gardner, manipulative mothers made up false allegations of sexual abuse of children against fathers in order to exclude those fathers from their children's lives forever. Gardner later expanded PAS to a general theory of one parent alienating a child from the other parent for a variety of reasons.

Where PAS was established, Gardner recommend a transfer of "custody" from the beloved custodial parent to the rejected parent for "de-programming" and "reverse-brainwashing", after which the child may be slowly re-introduced to the earlier custodian.

Development of Jurisprudence The PAS theory became accepted in child protection and family law jurisdictions around the world, including Australia, despite a lack of scientific foundation.

1. Re K (1994) FLC 92-461 - The Full Court stated parental alienation as a ground or reason for the appointment of a separate representative.

(a) It remains one of the checklist of reasons used by the Court in appointing an independent children's lawyer under s 68L of the Act.

2. Johnson v Johnson (1997) FLC 92-461 - The Full Court determined that parental alienation was relevant in determining the best interests of the child: "In a case where there has been obvious contact difficulties between the parties, the possibility that the child has either been brainwashed or indoctrinated by one of the parents, must be a relevant consideration… Parental Alienation Syndrome is a very real psychological phenomenon…".

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Current Thinking Views regarding PAS now seem to have changed course. A number of empirical studies have critiqued and rejected PAS.

1. Lack of acknowledgement that one parent may in fact be abusive. Abuse is common, false allegations are not.

2. Lack of recognition of other factors that may cause children to become angry or detached from one parent, e.g. placing blame on the parent they perceive to have caused the separation or divorce.

3. Criticism of the approach of immediately detaching a child from one parent.

Status of Law The Family Court now appears to recognize that there are a range of justified and reasonable reasons why children feel estranged from or rejected by a parent which do not involve PAS.

However, in some cases there may be an alienated child, and that requires expert investigation.

PAS remains relevant under the new s 60CC considerations, especially under the "friendly parent" provision in s 60CC(3)(c).

Case Law

1. In Edwards and Edwards [2006] FamCA 1230, the mother appealed the trial judge's decision on the basis that His Honour had failed to acknowledge that PAS (with which she was "diagnosed") had been discredited. The matter was remitted for rehearing on other grounds.

2. In R v R (Children's wishes) (2002) FLC 93-108, the Full Court of the Family Court referred to the article and critique of a Californian law professor, Carol Bruch, and stated that the appropriate methods for dealing with alienated children "have not yet been discovered" but it was clearly not in an alienated child's best interests to be deprived of time with her father in circumstances that appear to have been engineered by the mother.

Potential Clinical Features of an Alienated Child

1. Deprecation and criticism of the rejected parent which is unjustified and/or exaggerated.

2. Denigration of parent with a rehearsed quality.

3. Justification of the alienation with memories of minor or trivial altercations without compelling reasons.

4. Heightened hatred of the rejected parent when in the presence of the aligned parent.

5. Extension of hatred to the rejected parent's family without justification.

6. No ambivalence - one parent is all good and the other parent is all bad.

7. No regard for rejected parent's feelings and no guilt.

8. Fear of loss of love from the aligned parent.

9. Feeling of abandonment by the rejected parent.

A Related Concept: Enmeshment Enmeshment is a relationship in which the psychological boundaries between the parent and child are blurred and their identities are merged. A child can become highly attuned to and assume responsibility for protecting the parent. It is often linked with PAS.

The Family Court has recognised the concept in a number of cases.

1. Cappetto v Capetto [2011] FamCAFC 62: The trial judge referred to the mother's comment that the children had their own wishes and did not wish to see their father, and considered that this was an example of the mother's enmeshment with the children.





2. R v R (Children's wishes) (2002) FLC 93-108: The trial judge, Guest J, said that although he could not on the evidence and to the required degree draw any conclusion of enmeshment, he was concerned about this aspect of the evidence.

B) INCREASED RECOGNITION OF FAMILY VIOLENCE

In recent years, there have been a number of reports identifying concerns regarding the treatment of family violence in the family law system.

In 2010, the Australian Government released an Exposure Draft of the Family Law Amendment (Family Violence) Bill 2010 and invited comment.

In 2011, the Australia Government released the Family Law Amendment (Family Violence and Other Measures) Bill 2011.

The most recent bill focuses on a number of areas, including:

1. Prioritizing the safety of children.

2. Changing the meaning of "family violence" and "abuse".

3. Strengthening the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors.

4. Giving the Courts better access to evidence of family violence and abuse.

Proposed Amendments If the most recent bill is passed, some of the major amendments to the Act we

may expect to see are:

1. A change to the definition of abuse (s 4(1)):

Current Definition:

"(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or (b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person."

Proposed Definition:

"(a) an assault, including a sexual assault, of the child; or (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

–  –  –

2. The scenario of a child being used as a sexual object by a third party through the involvement of another person is addressed.

3. Inclusion of "serious psychological harm" and "serious neglect" in the definition of family violence for the first time. This would no doubt lead to a broadening of the types of acts and things that would fall under the banner of "abuse".

2. A change to the definition of family violence (s 4(1) definition repealed

and a new s 4AB(1) inserted):

Current Definition "conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety."

Proposed Definition "(1) Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

–  –  –

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

–  –  –

This amendment would constitute a significantly expanded definition of family violence. The proposed definition appears to encompass types of physical, verbal, emotional and economic abuse, as well as stalking, false imprisonment and violence against property and animals.

3. A new s 60CC(2A): if there is any inconsistency in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). That is, in the event of inconsistency, the court is to give greater weight to the "risk of harm" consideration than the "benefit of a meaningful relationship" consideration.

4. A new s 60D: new obligations for lawyers and other advisers in respect of family violence matters.

Social Science Another interesting development in the realm of family violence is the progress of social science.

Recent studies have distinguished between forms of family violence based on common features and patterns.

The Family Law Council now considers that: "It is no longer scientifically or ethically acceptable to speak of domestic violence without specifying loudly and clearly, the type of violence to which we refer".

Johnston, Roseby and Kuehnle have developed a typology of intimate partner

violence which consists of 4 major categories:

1. Coercive Controlling

–  –  –

3. Conflict Instigated (Common Couple) Violence (a) Characterised by hostile exchanges over common disagreements that escalate to intermittent physically violent struggles.

(b) These couples have limited problem-solving skills.

–  –  –

4. Separation Instigated Violence (a) Identified by one or two violent incidences around separation.

There is no history of violence or coercive control. The violence is instigated as an acute reaction to a traumatic separation or other stressful event that has betrayed trust. It is in response to intense feelings of helplessness, bewilderment, fear, loss and shame.

C) SHARED PARENTING - MYTH OR REALITY?

Federal Magistrate Margaret Cassidy will touch on shared parenting and more specifically equal time parenting in the next session.

So, I will not discuss this topic in any detail other than to say that shared parenting remains difficult, particularly in high conflict cases.

–  –  –

Definition of Financial Agreement The term "Financial Agreement" is defined in s 4(1) of the Act, which is linked with ss 90B, 90C and 90D of the Act. There are corresponding definitions in respect of de facto relationships in Part VIIAB of the Act, but for the purpose of this paper I will focus on marriages.

In summary, a financial agreement can be defined as a written agreement entered into by two people who are contemplating marriage to each other, are married to each other or were married to each other but the marriage has ended in divorce, in respect of how all or any of the property or financial resources of either of them is to be dealt with upon separation / after divorce. Financial agreements may also deal with the question of maintenance and other ancillary matters.

A financial agreement is a creature of statute and overturns the equitable presumption that parties to a marriage are susceptible to undue influence from each other and therefore unable to validly enter into contracts with each other affecting their property and maintenance rights.

Technical Requirements of a Financial Agreement There are a number of technical requirements with respect to financial agreements.

1. There must be no other agreement under s 90B, 90C or 90D in operation.

2. The agreement must be expressed to be made under the appropriate section.

–  –  –

There are also other requirements concerning spousal maintenance and incometested pensions.

There is no requirement in s 90B, 90C or 90D for a financial agreement to be signed or executed in any way nor is there a requirement for the provision of legal advice or exchange of signed copies. As long as it is in writing and deals with specified matters, then it is effective as a contract. However, it will not oust the jurisdiction of the Court.

Parties are free to enter financial agreements which are not binding on them but which can be enforced, terminated or set aside.

In Fevia and Carmel-Fevia (2009) FLC 93-411, Murphy J stated:

"If a contract, or agreement is a "financial agreement", but is not "binding", it can, if valid and effective as such, have the effect, in relation to Part VIII of the Act, as as set out in Woodland and Todd (2005) 33 FamLR 177".

That said, it would be unusual for parties to enter into a non-binding financial agreement as they would be deprived of the major benefit of excluding the jurisdiction of the Court.



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