September 9th 2017


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COVER STORY Our unsafe schools are putting students at risk

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CANBERRA OBSERVED 'What's the question?' is the crucial question

FOREIGN AFFAIRS Beijing applauds jailing of Hong Kong activists

NATIONAL AFFAIRS The economic agenda Australia needs won't come from Mal or Bill

MARRIAGE AND FAMILY Child-support payments and parental alienation

MARRIAGE AND LAW NSW Law Society spruiks for same-sex marriage

INTERNATIONAL AFFAIRS Germany's energy plan: a disaster in the making

MUSIC Monetising the muse: 'Frugal comfort' would be welcome

CINEMA Logan Lucky: Southern fried robbery

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MARRIAGE AND FAMILY
Child-support payments and parental alienation


by Augusto Zimmermann

News Weekly, September 9, 2017

Reliable studies indicate that children often adapt better to their parents’ divorce if they are allowed to have a continuing contact with their non-custodial parents. Indeed, a recurring theme in the field of child psychoanalysis is that children of divorced parents often desire to develop a meaningful relationship with their non-custodial parents.

Three things should be taken into account when it comes to child custody. First, no children should be denied their basic right to develop a meaningful relationship with both parents. Second, no legal system has the legitimacy to prevent meaningful child-parent relationships to flourish, unless, of course, there are serious concerns about abuse and principles of natural justice are applied in the investigation of these matters. Third, there is no excuse whatsoever for parents to neglect or abandon their children, or to maliciously alienate them from the other parent.

Here in Australia the Commonwealth Department of Human Services has been responsible for determining the level of support that non-custodial parents are expected to pay. The amount required for such payment is based on the amount of care a child receives from each parent, which is determined by the time a child spends with his or her non-custodial parent.

Contrary to popular belief, child-support payments have nothing to do with fathers abandoning their children or reneging on their marital vows. In a “no-fault” system such as Australia’s, of course, nobody can contest their unilateral divorce. That being so, it is possible to envisage a loving father being forcibly separated from his beloved children and such payments being awarded ostensibly, without any reference to “fault” whatsoever.

Originally justified as a simple method of recovering welfare costs, child-support payments have been transformed into a massive federal subsidy on unilateral divorce. In other words, child-support payment is an entitlement to be automatically assessed on all non-custodial parents, and even on those who were unwillingly separated from their children against their personal will.

As noted by U.S. sociology professor Stephen Baskerville: “No-fault divorce allowed a mother to divorce her husband for any reason or no reason and to take the children with her. Child support took the process a step further by allowing the divorcing mother to use the now-fatherless children to claim her husband’s income – also regardless of any fault on her part (or lack of fault on his) in abrogating the marriage agreement.”

Also, support payments can become a lucrative reward for divorced parents who make it very difficult for non-custodial parents to develop any meaningful contact with their children. In view of the financial reward acquired from such payments, the position of some custodial parents is that the other parent should never be allowed to spend any time whatsoever with their children.

Accordingly, a parent who holds temporary custody may procrastinate as much as possible with custody litigation in order to prevent the other parent any right of access to their children. When this awful reality takes place, an innocent parent will lose access to their children and financially reward the other parent responsible for the alienation through no fault or agreement of his or her volition.

This form of parental alienation constitutes a violation of the United Nations Convention on the Rights of the Child (UNCRC). Parents are legally entitled to bring up their children – and children have a right to their own two parents’ care, as affirmed by that convention. Article 9 of the UNCRC states: “Parties shall ensure that a child shall not be separated from his or her parents against their will.” This article goes on to declare that children have a “fundamental right” to maintain a regular and meaningful contact with both of their parents, except where the best interests of the child are not properly realised.

This is the position adopted in Australia via section 61C of the Family Law Act, which addresses the responsibility of parents following separation and remarriage. One of the goals of the Family Law Amendment (Shared Parental Responsibility) Act 2006 was to ensure that children of divorced parents could enjoy the benefits of having both of their parents developing a meaningful involvement in their lives, to the maximum extent consistent with their best interests. That being so, section 60B of Family Law Act confirms that every child has the right to contact on a regular basis both of their parents.

Unfortunately, some excellent parents have completely lost any access to their children. This is particularly so when non-custodial parents are falsely accused of child abuse and neglect, and even the sexual molestation of their children. Even after the Department of Child Protection (DCP) and the family courts entirely clear the innocent parent of any wrongdoing, more often than not the courts end up keeping the custody with the parent who made the false allegations.

Family Violence Orders (FVOs) are a common strategy for the purposes of generating parental alienation. Such orders are easily obtainable and they can be used to alienate an innocent parent from their children. The custodial parent only has to defame the other parent without the slightest need of proof. Such accusations completely tear apart entire families, all on the word of one person and with no need of evidence.

According to Dr Adam Blanch, a provisional psychologist and counsellor working in Melbourne: “The more a single parent can restrict the other parent’s access to the children the more financial support they receive from the alienated parent and the government, and a [FVO] even when based on allegations that have been unsubstantiated is a great weapon in the fight for primary custody and restricted access.”

More often than not, when the custodial parent refuses to give the other parent any time to spend with their children, the non-custodial parent proposes (on a without admission basis) to spend at least some supervised time with them, often with a mutual friend supervising. A typical response by the custodial parent is to refuse any contact whatsoever, even when he or she could have proposed supervised time to occur through a contact centre and the other parent would probably have accepted it.

Since the amount of payment is proportional to the time of visitation, the alienation strategy is undoubtedly linked to child-support payments. Support payments have been transformed into a perverse incentive to unilateral divorce and parental alienation. Contrary to popular belief, such payments have nothing to do with parental neglect or abandonment. Since the entirely alienated parent is forced to pay 100 per cent of support, this scheme undeniably provides a perverse and sinister incentive for complete alienation of the non-custodial parent. In sum, the parent who maliciously provokes such alienation will be fully entitled by law to obtain a financial reward through a deeply flawed system that ultimately rewards their behaviour.

To conclude, it is important to consider that maliciously separating an innocent parent from his or her children (so as to obtain undue financial advantage) constitutes an extremely serious form of child abuse and neglect. Perpetrators of false allegations for the purposes of obtaining financial gain should not go unpunished, as is often the situation now. Once it is possible to testify beyond reasonable doubt that no abuse has occurred, such false accusations should be approached as a form of child abuse and give rise to the loss of custody to the parent who has been falsely accused.

Dr Augusto Zimmermann, LLB, LLM cum laude, PhD (Mon.) is a Law Reform Commissioner with the Law Reform Commission of Western Australia and Professor of Law (adjunct) at The University of Notre Dame Australia, Sydney. He is also Director of Post-Graduate Research and Former Associate Dean (Research) at Murdoch Law School. Dr Zimmermann is also a Fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF).




























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