Parental Alienation Syndrome: family law's paradigm for child abuse

The court's emphasis on punishing mothers who flee with their children in preference to exposing them repeatedly to abuse replaces the previously paramount principle of the "best interests of the child". The rationale which justifies removing young children from the care of the only parent they have ever lived with and forcing them to reside with the parent they allege has abused them is the paradigm of Parental Alienation Syndrome.

The Australian Family Court Magellan project identified that child abuse issues in the Family Court were rarely without foundation, were often serious and complex and that many cases had not been investigated by the state child protection services. The Magellan project had three elements: the court-dedicated specialist personnel who conducted cases according to a strict timeline; all parties in selected cases were provided with uncapped legal aid, and police and state child-protection services worked in partnership and with specialist training in provide information to meet the Family Court's needs. State child protection services normally work to the Youth Court of the Children's Court and are oriented primarily towards short-term interventions and family reunification. The Family Court is oriented to the long term and must take into account the likely future needs of the child.

The Family Law Council last year recognised the serious current problems for children experiencing abuse in its call for the establishment of a National Child Protection Unit to investigate child abuse allegations in Family Court proceedings. The Family Law Council recommendations also called for greater co-operation between state and federal services around child protection issues and the establishment of a one-court principle such that proceedings involving child contact and residence and abuse issues would deal with all matters in whichever court was deemed most suitable to handle the matter.

Even if a professional accessible service to investigate child abuse allegations in the Family Court is established, the court has considerable discretion over how such findings will be handled. The presiding judge may reject evidence and recommendations presented by the parents or the Children's Representative. Section 68F of the Family Law Act provides a list of factors which the court must consider, but it does not give any one factor weighting ahead of another. The 1996 Family Law Reform Act's emphasis on a child's right to continuing contact with both parents has been noted by family court researchers as having created a "pro-contact" culture in the courts. What is required is legislative change to the Family Law Act to require judges to make decisions privileging the child's safety ahead of all other considerations.

Such provisions have been successfully enacted in New Zealand following a case where a father had been awarded custody of his three children because the wife persistently alleged abuse. The father subsequently killed the three pre-schoolers - an event that a subsequent inquiry found could not have been predicted because no one but the wife had ever alleged he was violent. Most children who are subject to abuse are not killed, however it is worth noting that the context of family separation is the most common scenario of child homicide in Australia, accounting for 35 percent of child killings. The deaths of the three Bristol children led to amendments to the NZ Guardianship Act.

Section 16 (b) subsection 4 of the Guardianship Act provides for a rebuttable presumption of custody or unsupervised contact where a party to proceedings has been violent to a child or adult party to proceedings. If an allegation of violence is raised the court must first establish whether such allegations can be proven on the balance of probabilities. The definition of violence includes physical, sexual and psychological violence. A single act of abuse may establish violence.

Section 16 (b) 5 lists statutory criteria which judges must consider to determine a child's safety. These factors make risk assessment the central focus in children's matters where violence has been established as an issue. The factors considered include the nature and seriousness of the violence, the history and frequency of violence, the harm to the child, the views of the child and the other parent and any steps the violent parent has taken to reduce the risk of future violence.

Legislative reform to the Family Law Act to privilege children's safety alongside the establishment of a national child protection service are two necessary steps in improving outcomes for children from separated families with histories of domestic violence and child abuse. Without an effective system to provide evidence of allegations of abuse and without a primary valuing of children's safety, the paradigm of PAS will continue to provide justification for court-mandated child abuse.