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Family Court’s handling of violence under scrutiny

The use of parental alienation in New Zealand's Family Court system is being examined by an international expert on violence against women. Teuila Fuatai reports. 

A visiting Canadian law professor says New Zealanders need to challenge the use of “parental alienation” – and subsequent minimisation of domestic violence – in the Family Court.

Professor Elizabeth Sheehy, from the University of Ottawa, spoke about her research on Canadian family court cases involving domestic violence accusations and parental alienation as part of a panel at the University of Auckland this week.

Alongside Auckland lawyer and women’s rights advocate Catriona MacLennan, Sheehy - an expert on violence against women - outlined how parental alienation had developed into a commonly accepted “legal principle” in the past 30 years, despite the lack of scientific evidence backing it.

Both women discussed how accusations of domestic violence disclosed in Family Court matters were often countered by allegations of parental alienation. In those cases, it was commonly used by fathers as an explanation for why their children did not want to see them, or may even be making accusations of abuse against them, the pair said.

Deborah MacKenzie of the Backbone Collective, a group advocating on behalf of domestically abused women, was also on hand for the panel discussion.

The judges see family violence as not relative or determinative of best interests of children - in sharp contrast with allegations of parental alienation.

“It is a term coined by American psychiatrist and psychoanalyst Dr Richard Gardner in the early 1980s,” MacLennan said of parental alienation.

“Dr Gardner posited that both mothers and children in custody cases falsely and maliciously accused fathers of sexual abuse and violence as tactics in court proceedings.

“As early as 1993, research in the United States questioned the existence of Parental Alienation Syndrome. More than 500 studies have now been conducted into the so-called syndrome and not one of them has been able to replicate the eight characteristics claimed by Gardner.

“All of Gardner’s books were self-published and none was peer reviewed,” she added.

Deborah MacKenzie, Catriona MacLennan and Professor Elizabeth Sheehy. Photo: Teuila Fuatai

Sheehy, MacLennan and MacKenzie linked the use of parental alienation in the Family Court system to the dismissal and minimising of domestic violence accusations in cases.

“The common thread that emerges from the cases is that mothers’ concerns about domestic and sexual violence are dismissed as lies, or minimised, so they can be discounted,” MacLennan said.

Sheehy, who referred to this as “domestic violence being siphoned” from the Family Court system, explained how allegations of parental alienation tended to be viewed more seriously than those of domestic violence.

“We’ve got an excellent Domestic Violence Act that’s never, ever been properly applied."

She pointed to a 2001 study, commissioned by the Canadian Bar Association, that examined 5170 reported cases and 2138 court files, involved interviews with 70 men and women, and surveyed 150 family lawyers.

Researcher Linda Neilson found that “maximum access” with the parent who didn’t have day-to-day care of children was emphasised “over and above” a safe environment, quality of care, and adequate financial support for children, Sheehy said.

“The judges see family violence as not relative or determinative of best interests of children - in sharp contrast with allegations of parental alienation," Sheehy said. “Those are seen as directly relevant to children’s best interests, and therefore deserve or require resolution by the judge.”

Until the baselessness of parental alienation was understood and widely accepted by those working in the Family Court, domestic violence would not be dealt with properly, she warned.

“The more judges have incorporated it as a legal principle, or take legal notice of it, [the easier it is] to access for litigants - they don’t even have to get an expert."

In one Canadian case Sheehy examined, the judge had used other judgments as precedent to “find parental alienation” in the case.

“Once that happens, we are in a hornets' nest,” she said.

MacLennan added: “We’ve got an excellent Domestic Violence Act that’s never, ever been properly applied. We don’t need to change the law, we just need to apply the Domestic Violence Act properly and stop using situational violence and parental alienation - constructs which are completely artificial”.

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