Australia: Judge Changes Child Custody to Dad from Alienating Mom

December 8, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In Australia, a judge has transferred custody of an eight-year-old girl to her father from her mother due to the mother’s persistent alienation of the child. Read about it here (Family Law Express, 12/1/14). The couple split up when the girl was 13 months old, and the mother began a campaign of keeping the father out of their daughter’s life.

A judge recently took the “drastic step” of ordering that a girl, eight, who had lived with her mother since her parents separated when she was 13 months, instead live with her father.

Changing the child’s primary carer from the mother to the father was the only way the girl could have a meaningful relationship with both parents, Judge Evelyn Bender decided.

The mother had for years interfered with her daughter’s court-ordered time with her father, who did not see his child for months at a time.

“The mother tells (the child) that her father is going to take her away and not allow her to ever see her mother again,” Judge Bender said.

The anxious little girl had told a Court family consultant it was her dream to be able to “love Mummy and Daddy at the same time”.

The child then, is smarter and more constructive in her relationships than is her mother.

In the recent case the court heard the couple, who separated in 2007 after five years together, had been in ongoing litigation over their daughter’s living arrangements.

The court heard the mother’s unremitting campaign to undermine her child’s relationship with her father distressed the child, who loved both parents.

Judge Evelyn Bender finally gave primary custody to the father, effectively changing the role of mother and father.

Judge Bender said if the girl lived with her father she would be “allowed to be a child”.

She gave the father sole responsibility for the child’s health and education and allowed the mother to spend time with the girl on alternate weeks and during holidays.

Now, the article never calls it such, but what we’re witnessing in the case is parental alienation. It’s not just a failure or refusal by the mother to allow access by the dad. That of course can be part of a campaign to alienate the child, but this is more than that. It also includes actively trying to turn the girl against her father, behavior that’s rightly called child abuse by mental health professionals conversant with PA and Parental Alienation Syndrome.

Those same mental health professionals point out that, in many cases, doing exactly what Judge Bender did is the only way to stop the alienation, the abuse. Many parents bent on alienating their children from the other parent are simply dead set on that goal and do not heed lesser sanctions by courts. As the article makes clear, removing a child from the custody of one parent and placing her in the custody of another is a “drastic” step, but in extreme cases, that’s what’s necessary.

It’s necessary because the child needs healthy, full, meaningful relationships with both parents and, in the presence of alienation, that simply cannot be. In the case reported on, years passed and the mother kept father and daughter apart, preventing any substantial relationship. But the father had no such intention toward the mother, so the change in custody was not only necessary, but healthy, if…

It will be healthy if it’s followed by (a) the mother’s learning her lesson and (b) her gradual reintroduction into the child’s life as a full parent. In other words, at some point soon, we’d like to see equal parenting between the two, assuming the mother sets aside her alienating ways and learns to co-parent effectively with the father.

A couple of other things come to mind about this case. The first is the inordinate amount of time it took the court to change the custody order. The father has been complaining for years that his access had been denied or limited, so why did it take the court some six years to finally conclude that the only remedy for the situation was the “drastic” step of a change in custody? After all, the child’s parents have been fighting this out for about six of her eight years, and it’s that very time that makes the new order so drastic. The girl has lived virtually all her life with her mother and I’m sure the change will be in some ways unsettling for her.

Did it need to be? I don’t think so. A court that’s attuned to the problems presented by an alienating parent should have taken action to stop it far earlier than this one did. But that action needn’t have been so drastic. Transferring custody is the “nuclear option” in family courts and should only rarely be the first choice by a judge who’s faced with alienation or interference with visitation.

But of course this is Australia and so changing custody does have to be the first option for the judge. Indeed, when it comes to punishing a recalcitrant custodial parent, it seems to be the only option. As we know from the writings of Australian historian John Hirst, family courts long ago abjured the use of sanctions against custodial parents for refusing access to the non-custodial parent. As Hirst details in his long essay, “Kangaroo Courts,” alone among all courts, family courts refuse as a matter of policy and precedent to use their power of contempt against non-custodial parents (90% of whom are mothers) who refuse to obey visitation orders. In all of Australia, those are the only courts that refuse to use their contempt powers and the only orders they refuse to enforce.

Given that that’s the box those courts have put themselves in, it’s no surprise that custodial parents have little respect for access orders. Why would they? They know that the only thing that can happen to them is to lose custody and that’s an outcome that’s so rare as to be all but non-existent, the present case notwithstanding.

So it’s really no surprise that it took six years of persistent alienation for this court to act. Transferring custody is a drastic step, one that courts undertake rarely and with trepidation. And Australian precedent doesn’t permit the judge to do anything else.

Then there’s the fact that the standard way of allocating custody to a primary parent and a secondary one with only rights of access itself promotes parental alienation of children. As PA and PAS expert Linda Gottlieb has written,

The PAS is an opportunistic syndrome, and it is generally the mother who is afforded this opportunity. The opportunity arises because the judicial system in this country is more likely to grant residential custody to the mother, even if joint legal custody is simultaneously granted. And access to the child by the alienator – as well as lack of access by the alienated parent – is the environment which permits the PAS to thrive.

Giving the custodial parent the child between 80% and 86% of the time is exactly the opportunity alienating parents need to turn the child against the other parent. That gives the primary parent all the time s/he needs to plant the seeds of alienation in the child’s mind and the secondary parent almost no time in which to prove to the child the tales told by the other parent aren’t true.

Providing the opportunity for alienators to do their dirty work is yet another reason why the current system of primary/secondary parents must be scrapped.


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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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