COURT DETERMINES WHAT IS IN THE BEST INTERESTS OF THE CHILDREN AFTER THEIR FATHER ALIENATED THEM FROM THEIR MOTHER
MOLKENS & ANSELL
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 37
This case involves the alienation of children by one parent against the other.
Facts:
In this case, the Court is asked to make parenting orders concerning their four children: Z, 15 years old, W, 13 years old, Y, 12 years old, and X, 10 years old. Ms. Molken (Mother and Applicant) was concerned that Mr. Ansell (Father and Respondent) was alienating all the children from her. On the other hand, Mr. Ansell was concerned about Ms. Molken's husband and the quality of housing provided to the children.
Issue:
- Whether or not the presumption of equal share parental responsibility is in the best interests of the children.
- What is in the best interests of the children in this case?
Held:
- The legislative framework mandates that when making a parenting order, the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not the children’s best interests for it to apply. [1] In this case, the judge decided that the presumption of equal shared parental responsibility would not be in the best interests of the children given the difficulties experienced by the parties in communicating and making decisions together.
- Further, in determining the child’s best interests, the court should consider the following:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[2]
The judge found that the father has systematically undermined the mother’s parent/child relationship and enticed the children to reject their mother, as shown by Z’s physical and verbal aggressiveness towards his mother, his refusal to communicate with her, and his offensive Facebook comments against his mother. The judge found the father have involved the children throughout the dispute and failed to promote relationships between the children and their mother. The judge was satisfied that there is a real risk that if the children continued living primarily with the father, the relationship of the three children would go the same way as that of Z.
In the issue of risk of harm, the judge was satisfied that the children are not at any risk of physical or psychological harm in the care of their mother or her husband. However, the judge had concerns that the children would be subject to psychological or emotional harm in their father’s care, given his involvement of them in the dispute and his deliberate attempt to align the children with him. The judge decided that the risk could be mitigated if the children spent shorter periods with the father.
Hence, the judge held that it is in the best interests of Z to live with his father, while the other three children live with their mother.
The Family Law Act 1975 provides that it is in the best interests of the children if they have a meaningful relationship with both of the parents. In this case, the father alienated the children from their mother and failed to promote the relationship between them. The Court found that living with the father is not in the best interests of the children; thus, the Court retained Z under his father’s care and the other children were ordered to live with their mother. The Court ordered a moratorium of six-weeks to allow the children to settle into the mother’s primary care again free from the negative comments by the father.
[1] Molkens & Ansell [2020] FCCA 37 (14 January 2020) at (9).
[2] FAMILY LAW ACT 1975 - SECT 60CC.