One Nation leader Pauline Hanson’s unfounded claim women that lie about domestic abuse to deny fathers access to their children is what’s driving the latest parliamentary inquiry into the family law system.
But this isn’t a new idea. Hanson’s claim stems from a history of discrediting women in the family court, with gendered expressions “parental alienation” and “parental alienation syndrome” emerging in the 1980s. They’re expressions you can expect to hear as the inquiry unfolds across the country over the next year.
Parental alienation is hard to define because of its contested nature. But it is generally understood as the actions of one parent to prevent a child from having an ongoing relationship with the other parent.
Of course, there are cases where parents engage in despicable and irrational conduct towards each other after separation – and involve their children. Both mothers and fathers are capable of this.
But many parents accused of alienation are mothers alleging family violence or child sexual abuse.
And the consequences can be serious and detrimental to children if the court requires them to visit or live with an abusive parent.
Parental alienation in Australian courts
Recent Australian research into family law cases shows parental alienation continues to be raised by fathers as a “defence” to child sexual abuse allegations.
When parental alienation is raised, mothers can experience intimidation from many angles – fathers, family report writers, judges and lawyers – all painting them as “hysterical, vindictive and manipulative women”.
This research is reflected in harrowing stories such as those Jess Hill and other journalists have gathered from women and children caught up in alienation claims in our family courts.
These problems still occur in Australia partly because the legislation regulating family law in Australia promotes a philosophy of “sharing children” after parents separate, in terms of decision-making and time.
While the term “parental alienation” is not in the family law act, a mother who is reluctant to send her children to their father may be perceived as obstructive in the face of this “sharing children” aspect of the law.
It’s a short distance from being seen as obstructive to being labelled alienating.
When an alienation accusation finds support from an expert witness or a judge, the children may be sent to live with the father and the mother’s access may be severely reduced or totally denied.
Although such an outcome does not always follow, orders transferring the residence of children to an allegedly abusive father are sometimes made, often against the strong and clear views of the children.
A debunked, outdated theory
The term parental alienation syndrome first appeared in Australia in 1989 in a widely read family law journal. The author, Kenneth Byrne, reported on this new concept called “parental alienation syndrome”, which had been coined by USA child psychiatrist Dr Richard Gardner a few years earlier.
Unfortunately, and incorrectly, Byrne informed his readers that although “some” claims of child abuse
are legitimate; many more are manifestations of [parental alienation syndrome] embedded in charges of abuse.
In 1995, the term parental alienation syndrome first appeared in a published case from the Australian Family Court.
It’s no coincidence this was when the first set of legislation amendments aimed at shared parenting were under consideration. Mothers who did not willingly send their children to their fathers came under scrutiny for their “hostile” attitude.
Research after those mid-1990s amendments found women were often disbelieved in their claims of family violence and child sexual abuse and such claims were often responded to with allegations of alienation.
Mothers even reported that their lawyers advised them not to raise violence for fear of being accused of being an alienator and potentially losing their children.
Despite this, parental alienation and parental alienation syndrome continue to be alleged in parenting cases. And research continues to be conducted both by scholars who see parental alienation as valid concept and by those, such as myself, who are concerned that the term is easily misused and is dangerous.
Unsafe arrangements for children
American researchers recently conducted a large study of cases involving parental alienation and abuse allegations.
They found where the father claimed parental alienation, courts were more than twice as likely to disbelieve any claims of abuse by mothers, and almost four times more likely to disbelieve allegations of child sexual abuse.
In Australia, the most recent inquiries about the family law system recommend repealing some of the sections of the Family Law Act that strongly promote shared parenting because of concerns that they sometimes silenced violence and created unsafe arrangements for children. But none of the recommendations from the recent inquiries have yet been implemented.
The new inquiry is an unsubtle attempt to push these concerns away – until the next child is abused or dies while visiting a parent against their wishes – and a new inquiry is called into how to deal better with family violence in family law.
Authors: Zoe Rathus, Senior Lecturer in Law, Griffith University