Background
The case of Lankester & Cribb [2018] FamCAFC 60 (6 April 2018) demonstrates the potential consequences of parental alienation. This includes but is not limited to moving the child from the primary care of one parent to the other, ordering sole parental responsibility and preventing the child from spending time with one parent.
Parental alienation occurs when one parent (the “alienating parent“) negatively influences a child’s view of the other parent (the “alienated parent“). As a consequence, the child unreasonably denigrates the alienated parent whilst demonstrating a strong allegiance to the alienating parent. This behaviour could potentially result in the relationship between the child and the alienated parent being destroyed.
Lankester & Cribb was an appeal of a decision made by a Judge of the Federal Circuit Court. The mother was seeking to appeal the Final Orders made at first instance, which provided that:
• the child (who had lived in mother’s primary care since December 2009 when she was approximately 6 months old until the date of the Orders in July 2017) live with the father;
• the father have sole parental responsibility;
• the mother was prevented from seeing the child for a period of 6 months following the child moving into the father’s care; and
• following the moratorium period, the child was to start spending supervised time with the mother. The supervised time would continue for a period of two years, gradually increasing in duration.
The parental alienation in this case was primarily caused by the mother’s unsubstantiated belief that the father had sexually abused the child. The child was six months old when the parties separated. The child lived with the mother and spent time with the father. Various proceedings were initiated and settled by consent prior to the final judicial determination which is the subject of this appeal.
During the course of the time between separation and the date of the Judge’s Final Orders:
• the mother made a complaint to the police following the child stating to her that she had a “sore wee-wee” following a three hour visit with the father. The mother recorded the conversation she had with the child;
• the mother questioned the child on other occasions in relation to allegations of sexual abuse and recorded it;
• the mother took the child to a hospital’s emergency room alleging that the child had been sexually abused by the father;
• during a child inclusive conference, it was reported amongst other things that the mother became distressed when separated from the child;
• the child was referred to a psychologist and made unprompted disclosures in relation to sexual abuse;
• it was determined that there was no medical evidence which supported the mother’s continuous allegations that the child had been sexually abused, despite various tests and examinations;
• the mother continued to express her belief that the father had sexually abused the child, despite a lack of evidence; and
• the mother claimed that the child would become extremely distressed whenever the father was mentioned.
The Trial Judge’s Analysis
The trial Judge determined that the child needed to be “protected from the continued likely escalation of that emotional manipulation and harm and the likely destruction of her relationship with her father in the primary care of the mother”. This was a significant determination in light of the fact that the child had been living in the mother’s primary care for approximately seven and a half years.
It was considered that the change in primary care arrangements was necessary in an attempt for the child to have a normal relationship with both parents.
It was recognised that the change in living arrangements to the primary care of the father would “likely involve grief, loss, confusion, a high level of stress, intrusive thoughts about the mother and missing the mother constantly. However, the trial Judge determined that this was outweighed by “the risks that present for her in the mother’s primary care including the need for [the child] to conform to the mother’s view that [presents as psychologically and emotionally damaging to her].”
The moratorium on the child spending any time with the mother and then a staged re-introduction was considered necessary so that the child could build a relationship with the father, free from the mother’s influence and to “break the cycle of harm when she is with the mother.”
The Appeal
The mother appealed the decision on the basis that the judge failed to provide adequate reasons for the decision. On appeal, it was determined that the trial Judge provided adequate reasons, basing their decision on the finding that the mother posed a risk of harm to the child which required a change to the child’s primary care arrangements.
Significance of the Case
This case demonstrates that the Court is prepared to completely overhaul a child’s living arrangements on the basis that the alienating parent’s behaviour places the child at risk.