In determining what is in the best interests of the children the Court must consider the matters set out in s 60CC of the Family Law Act 1975 (Cth). The primary considerations that a court must consider are:
- The benefit to the child of having a meaningful relationship with both of his/her parents;
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both of these primary factors have equal relevance however, if family violence is substantiated, the need to protect the child is elevated. Psychological harm includes parental alienation.
In the 2018 case of Goldman v Goldman, the wife was the primary carer to the parties’ two children aged 13 and 11 years of age respectively at the date of the trial prior to separation, and the children had also lived with the wife since separation.
The single expert in the case was of the opinion that the children had a “close dependent relationship” with the wife that was “enmeshed” thus “not conducive to good future mental health”. The single expert recommended that the children live with the father and that the children’s time with the wife be suspended for a period of 1-6 months.
Her Honour, Cleary J, found that the wife was focused on punishing the husband and “turning the children’s affections away from him”, causing emotional harm to the children and posing an ongoing unacceptable risk of harm to them.
Her Honour ordered that the children live with the father and spend supervised time with the wife, such time to commence four weeks after the date of the Order. The husband appealed, seeking that there be no contact between the wife and the children for a period of three years. The Full Court of the Family Court dismissed the appeal. The Full Court was of the view that Her Honour Cleary J had to balance the need for the moratorium to be for a period sufficient to allow the children to settle down with the husband but not so long as to cause the children to be overly distressed about not seeing the wife.
The Court does not often order a change of residence from one parent to another however, where it has been established that parental alienation has occurred, a court may find that it is in the best interests of the children for there to be a change of residence. In the case of Goldman, the Court also found that it was in the best interests of the children that there be a period of no contact between the children and the wife with whom the children had lived all of their lives up until that time, in order to allow the children to re-bond with the husband.
If you would like to find out more about the legal issues surrounding parental alienation, please contact one of our family lawyers for an obligation free discussion on 03 8393 0144.