The anger and hurt of divorcing parents often spills over into custody and access to children. Accusations of child abuse are defended with claims of lies and alienation using Parental Alienation Syndrome (PAS) resulting in the accusing parent losing custody. PAS has been discredited in America but there’s concern that it’s still being used in the Family Courts of Australia. Reporter: Jane Shields
Jane Shields: Australia’s Family Court system is the arena for some of the most sensitive, complex, fraught and disturbing conflicts imaginable. When husband and wife are deeply alienated, resentful, angry and hurt, terrible things can happen, and do happen.Hello, this is Background Briefing, I’m Jane Shields.Children are often at the centre of it all, also caught up in what can become a very tangled web. Each parent has rights, and the children have rights, but how is that web of dysfunctional family dynamics and personalities best untangled?Last week, there were media reports that parents who raise allegations of sexual abuse of their children in custody disputes themselves can become labelled as having a sickness, ‘Parental Alienation Syndrome’, or PAS. It’s an idea now totally discredited in America, but many say it’s still influencing family courts both there, and here in Australia. And it means children may be being sent into the care of an abusive parent.
Joan Meier: Parental alienation syndrome is a theory that was invented by a man named Richard Gardner. He said there is a syndrome called Parental Alienation whereby the custodial parents, who is usually the mother, is trying to alienate the children from the father, and she’s doing it by raising these false abuse allegations.
Jane Shields: That was Joan Meier, an attorney and Professor of Clinical Law at George Washington University.American psychiatrist Richard Gardner first wrote about PAS in 1985 through self-published articles on the subject.According to him, it’s seen almost exclusively during disputes over child custody. The alienating parent is seen as sick and dangerous, and the child should be taken away and given to the other parent to counterbalance the alienation. Critics of Gardner, and there are many, say this is bogus and very dangerous, particularly where there is possibility of child abuse.Louisiana attorney, Richard Ducote.
Richard Ducote: So what he did is he took the evidence that has been well documented, to exist in cases where kids actually have been physically and sexually abused by a parent, and simply redefined the evidence of abuse into evidence of what he called Parental Alienation Syndrome, which meant that the child was not being abused, but simply was being coached or encouraged by the other parent, generally the mother, into disliking the other parent for no good reason.And then he proposed a very draconian cure, as it were, for this non-existent disorder, and that was to take the child away from the protecting parent and give the child to the parent who the child had reported to have abused the child and then suggested that the mother be either jailed, or all of her contact with the child be terminated.’
Jane Shields: This sounds incredible, but Professor Ducote is an expert on PAS and is involved in drafting legislation to eliminate any reference to the syndrome in US courts. He has acted for victims of child abuse and custody for 22 years, and says the use of PAS is a cancer in the US Family Court.
Richard Ducote: We’ve seen in cases misguided mental health professionals who have adhered to Gardner’s bizarre philosophies who even recommend that children as young as 5 or 6 years old be handcuffed and physically and forcibly removed from the protective parent and turned over to the father who they have reported and other experts have confirmed, have sodomised them.
Jane Shields: Professor Ducote doesn’t pull any punches in his criticism of the harm done by the PAS adherents in America, and as a respected authority on the subject, he has had an impact. He has seen hundreds of cases in the US Family Court, and says the reason Gardner’s extreme ideas were accepted is that there was a willing market of attorneys looking for an easy defence against sexual abuse allegations. And, says Professor Ducote, before his death three years ago, Richard Gardner was a very good self promoter.
Richard Ducote: When I cross-examined him shortly before he committed suicide, he acknowledged that he had not spoken to the Dean of the Medical School at Columbia for over 15 years, and that he had not had hospital admitting privileges at any hospital for approximately 25 years, so he really was out there on his own. He was using these honorary positions which had no substance whatsoever, as something to give him credibility in the court system. And then he started, from 1986 into the late ’90s, churning out all of these books, that pretty much repeated the same theme that the sexual abuse cases were false, endorsing sex between parents and children, he would say things like ‘The way to cure incest in a family, is to give the mother a vibrator so she can have orgasms and then the father won’t have to turn to the child for sex, again blaming it on the mother.
Jane Shields: People listening to this are going to find that absolutely astounding.
Richard Ducote: It is, it’s absolutely amazing that this man had any credibility.
Jane Shields: The obvious question is, just how Richard Gardner managed to dupe the courts for so long.
Richard Ducote: He went unchallenged for approximately 15 years, because he was doing training, he was training other psychologists, and a lot of his works were not being read by the people who were on the other side of the issue, the people who really were experienced in child sexual abuse, and who had done a lot of the research, just simply wrote him off as a ‘kook’, they did not realise how much damage was being done because the primary reason being that the attorneys who generally practice in Family Court in the United States are not true litigators, they do not challenge evidence, they do not challenge witnesses, they don’t like to make waves, they like to mediate and they like to compromise. So very few of these cases where Gardner and his ideas were being presented in the courtroom, people would simply roll over and acquiesce to this nonsense.
Jane Shields: Eventually, Richard Gardner’s ideas were widely discredited, and are no longer used in some American courts. His work has been dismissed by the American Psychiatric Association, the American Psychological Association, and the American Medical Association who all say that the syndrome has no scientific basis.A Google search of the term shows just how much debate there is about this all over the world.PIANO
Jane Shields: Although PAS began in the United States, it spread to other parts of the world, including Australia.Freda Briggs is well-known and respected for her work in the child abuse area, and she is now Emeritus Professor of Child Development at the University of South Australia. She says it is a well-known issue among child abuse and custody specialists and she herself has seen PAS being used in Family Court cases across Australia, in Adelaide, Perth and Townsville.
Freda Briggs: Yes, very frequently, affecting both mothers and fathers, whoever is the custodial parent, is the one who is accused of manufacturing, in fact if a child is alleging abuse, the protective parent who tries to do something for the child is the one who is accused. You see, the caring parent is in a dilemma, because if that parent does nothing, and the child is saying, ‘Hey, I’ve been abused’, child protection services can come in and remove the child and put the child in foster care as a care and protection case. On the other hand, if the caring parent goes to the Family Court and tries to protect the child by seeking changes to the arrangements, perhaps banning visits, or more often asking for visits to be supervised, there is a strong risk that that child will be removed from the caring parents and handed to the abuser, on the basis that it is the parent who is the problem, therefore, the parents is imagining the abuse when it’s not happening, therefore the parent is emotionally damaging the child. And so far from being the protector, this parents is deemed to be the bad person.
Jane Shields: Freda says she’s contacted regularly by mothers, as well as fathers, who say they’ve lost custody of their children after raising allegations of sexual abuse against the children during custody cases.’Parental Alienation Syndrome’ arrived in Australia in 1989, in the form of an article published in The Australian Family Lawyer. The article, ‘Brainwashing in Custody Cases: parental alienation syndrome’, was written by an American, Dr Kenneth Byrne, who had come with his family to live in Australia and establish the Australian Institute of Forensic Psychology, of which he remains the Director. Dr Byrne no longer gives medical testimony, but works as a consultant forensic psychologist in Melbourne.Background Briefing telephoned him to ask if he still supports Gardner’s work.
Ken Byrne: Yes, I do. I support the notion that parental alienation syndrome does exist.
Jane Shields: As a syndrome? Because it has been discredited, it’s not in the diagnostic manual and it’s been discredited by legal and psychological and psychiatric and medical associations in America.
Ken Byrne: Well, I don’t know what discredited means. The fact that it’s not in the diagnostic and statistical manual doesn’t trouble me. There are many things that were not in that manual and later were in the manual. Gardner has specifically written about that issue of it not being in the DSM-IV.
Jane Shields: Surely that is the benchmark for people working in that field, is the diagnostic manual?
Ken Byrne: Well we must remember the diagnostic manual is written to diagnose psychopathology, that’s the nature of that book, it’s a manual to help distinguish different types of psychopathology. What Gardner is writing about is in what we might call a sub-sub-sub-specialty, which is forensic psychology-psychiatry, trying to answer questions posed by lawyers, or by courts about people who may or may not have a psychological disorder.
Jane Shields: But surely isn’t Richard Gardner’s work saying that there is a recognisable syndrome and people can actually be diagnosed with it and subsequently actually charged with it in a court of law?
Ken Byrne: The legal side of that, I don’t know that anyone can be charged with that. I haven’t done these cases in some years, I’ve retired from this area of practice, so I’m not up to date with the latest American legal cases.
Jane Shields: A legal review, published in the American Children’s Rights journal, found that PAS did not meet the common standards of scientific acceptance. But Dr Ken Byrne says he’s frustrated with arguments over whether PAS is technically a syndrome. He says these debates ignore its usefulness in determining custody cases.
Ken Byrne: What I do contend is that in assessing allegations of sexual abuse that occur within a Family Law context, it’s essential that the examiner and the court consider whether the statements made by the child are a product of what’s called adult social influence. Now the term ‘parental alienation’ is very helpful in understanding one possible cause of a child, particularly a young child, making an allegation of sexual abuse. What Gardner talks about is in very difficult divorce cases and custody cases, which are mainly the ones that find their way into the Family Court, you commonly find one parent or sometimes grandparents, forming the view that the child would be better off without having any contact with the other parent; they view the other parent as totally bad. This gets communicated to the child. Now children know what side their bread is buttered on, they’ve already had the experience of physically losing one parent who’s moved out. So when the parent they’re living with communicates either overtly or indirectly that the other parent is a loathsome, undesirable, terrible person, the child picks this up, and the child then begins to mimic the attitude of the parent they’re living with, and often the child begins to elaborate on things they’ve heard and build the story up. So that you then have a child particularly when there’s been gap in contact with the other parent; so let’s say you have a six-year-old who hasn’t seen the other parent in a year. Well the only thing they have left is their memory of that parent, which is very malleable and unreliable in a young child, not completely unreliable but more unreliable than in an adult, and the constant input from the parent they’re living with. Now that shapes a child’s perception. Now whether we call it parental alienation syndrome, whether we call it brainwashing, the name doesn’t matter, the fact is that it goes on in these cases, and I’ve seen many such cases and so has everyone else who is experienced in this area and understands the dynamics of separating parents and bitter divorce.
Jane Shields: In 1990, a year or so after his article on PAS was published, Dr Byrne was asked to present his views to the Annual Conference of Australian Family Court judges, at the invitation of the then Chief Justice, Alastair Nicholson.These days, Justice Nicholson is no longer on the court, but continues to work for child advocacy in many projects. At present, he’s in Madurai, in Southern India, working on an aid project to help children with HIV/AIDS.On the phone from his hotel room, he explains why the Family Court judges asked Dr Byrne to speak.
Alastair Nicholson: At that time we took the view that we should get presentations from different experts in the field, he being one of them. And I therefore approved of his giving the presentation. The fact that we permitted it to happen doesn’t mean it was an endorsement of it. I think that judges need to be aware of different views and trends that are operative in these areas, and that was just one of them. As I say, it had some vogue at the time and I thought it was worth considering.
Jane Shields: Alistair Nicholson.The talk Dr Byrne gave was one of many he gave to judges, lawyers and psychologists and psychiatrists during the ’90s. And the ideas showed up in a 1997 appeal to the Family Court, when a husband raised the suggestion that his former wife had PAS. Here is a reading from the judgment at that time.
Reader: In a case where there have been obvious contact difficulties between the parties, the possibility that the child has either been brainwashed, or indoctrinated by one of the parents, must be a relevant consideration. Dr Byrne’s article leave us in no doubt that ‘Parental Alienation Syndrome’ is a very real psychological phenomenon which the husband, in our opinion, was entitled to investigate and put to the relevant experts called in the course of the trial.
Jane Shields: That was in 1997, and since then there has been increasing evidence that the ideas are bogus and unhelpful to the Court. Former Chief Justice Alastair Nicholson says it’s now proven to be psycho-babble. He cites a Family Court case of five years ago that effectively dismissed PAS as having no substance. However, he does acknowledge there is some lingering influence.
Alastair Nicholson: I think one of the things that happen is that it is dredged up from time to time.
Jane Shields: There have been studies that have found that legal practitioners are using parental alienation. I’ve also spoken to a family lawyer who’s been in a case where their client has been accused of alienation and a recent study by Thea Brown has indicated that amongst the psychologists and psychiatrists who are providing witness and testimony to the courts, are quite convinced of alienation theory.
Alastair Nicholson: There may be some, but in my view they’re not being given any credence. As I say, it’s the line that’s being pushed, and I just don’t think it receives any currency. I can’t say that an individual judge somewhere may or may not have given it some credence, but that would be about all, as far as I could see.
Jane Shields: Cases involving allegations of sexual abuse are among the most challenging to confront courts in Family Law. In these situations the Family Court must apply a test of ‘unacceptable risk’. What this means is that a court shouldn’t grant custody or access to a parent if this will expose the child to an unacceptable risk of sexual abuse. Former Chief Justice, Alistair Nicholson:
Alastair Nicholson: That means you don’t have to find there’s been sexual abuse, you don’t even have to find there’s probably been sexual abuse, you simply have to find ‘Is there an unacceptable risk or not?’ Now that can be very tough in its application on some parents, and that may be that that’s the reason why some Full Courts have drifted away from that position. But in my view, that’s clearly what the law should be, and it’s the way the law should be applied. And if you apply it that way, I think it works quite well.
Jane Shields: Family Law matters are notoriously intense and difficult, and often impossible to solve to everyone’s satisfaction. Chair of the Family Law Council is Patrick Parkinson.
Patrick Parkinson: It’s a dilemma that the Family Law system has to face. It’s the too-hard basket for society. On the one hand, it is devastating to a parent to be told they can’t see their kids, or to be put under such restrictions that a real relationship is very difficult. On the other hand, it is devastating for children to be exposed to abuse. And we need to rely on the courts to try to sort out what’s going on in these cases. Now there are some judges who set the bar higher than other judges; it is a dilemma and there are no simple and straightforward answers.
Jane Shields: At Brisbane’s Mater Hospital, Dr David Wood is Director of Paediatric Health Services. He is also Chairman of the Abused Child Trust in Queensland, and Chairman of Kids First Australia. And he’s also been awarded an Order of Australia for his contribution to child protection in Queensland over the past 20 years. He’s recently become a very vocal opponent of the Family Court, and has made a public vow never to return to the witness box in that court.
Jane Shields: Hi David, how are you?
David Wood: Hi, Jane, I’m really well. How are you, it’s nice to meet you.
Jane Shields: Dr Wood is cautious about discussing particular Family Court cases, but he has no hesitation in criticising the Court’s attitude when it comes to the testimony of professionals in the area. He says it is a totally different experience to be an expert witness in the Children’s Court, the Supreme Court, or even District Courts. The Family Court in Queensland, David Wood says, has a particular culture.
David Wood: I think the Family Court’s role seems to be to try to exclude a professional from giving their experience and knowledge and comments on a case, and I’ve certainly got a 10-point listing of what barristers do to try to destroy or denigrate professional witnesses that barristers are taught. One is never upset the witness; never allow them to explain their answer, but there always are ploys to ensure that really, you don’t allow professional opinions to be given in the court, which then allows you also to try to exclude that witness, or the witness’ knowledge, so that you’re actually destroying that person’s credibility so that their opinion, from a professional point of view, doesn’t get into court.
Jane Shields: Dr Wood says that the Family Court is more interested in discrediting the witness’ professional experience rather than hearing the facts about the particular case. But there is the reality that the court is part of an adversarial system that must make a decision on behalf of two conflicting parties.Dr Wood.
David Wood: It shouldn’t be called the Family Court should it? It should be called the Parent Fight Club, or something equivalent to that, and the knock-out blow is the end of the story. The reality is for children, that isn’t the end of the story. For children, it’s an ongoing process and children need parenting that’s an ongoing process, an education that’s an ongoing process. Decision-making that parents do or that we do, are always reviewed on regular bases. So I don’t see that the Family Court a) has the ability to do that, or even has the capacity to think that that’s necessary.
Jane Shields: Is it a resource issue, or more of a culture issue in your view?
David Wood: I think that’s definitely a legal culture.
Jane Shields: In late 2005 in the United States, the Public Broadcasting Service screened a controversial documentary about parental alienation syndrome.
Announcer: All over America, battered mothers are losing custody of their children when they file for divorce; even with a proven record, abusers are winning joint and sole custody.
Jane Shields: The program was called Breaking the Silence – Children’s Stories and it documented the experiences of mothers and children who’ve been separated as a result of PAS in America.In part of the documentary, Karen tells how her suspicions that her husband was sexually abusing her children were confirmed through a medical exam, but a court-appointed psychologist successfully testified that she was using Parental Alienation Syndrome to turn her children against their father.
Woman: Mothers are never prepared for their children to disclose sexual abuse, and when my children disclosed, I didn’t want to believe it, but I didn’t know what to do either. The children had only that one week begun to see their father alone, and that’s when they came home and one of them was in serious pain and she was quite inflamed in her vaginal area. So when you start going through the battles, it’s No.1, you don’t know what to do. I turned to my attorney and I was given very, very bad advice. I turned to the courts through my attorney, and I found that the more my children disclosed, the more the court didn’t want to believe that my children had been abused, they believed their father instead, and they took the children away from me, totally. It’s been four years and three months since I’ve even seen my children.
Woman: They said that my daughter was afraid of her Dad, she didn’t want to visit with him alone, and that was my doing. He was pulling her out of cars to visit him, even when she didn’t want to leave, and basically they said that I should just bodily take her out of the car and drive away. And at that point, they started in motion to start this Parental Alienation Syndrome that they charged me with.Jane Shields: This woman’s daughter was also interviewed for the PBS documentary.
Child: I remember him coming up the stairs and knocking on the door, and telling us to go, but it was just so scary because it was like ‘Like, let’s run away, let’s get out of here’, you know. Because you know, like all this stuff was happening, I mean like what kind of person would take you away from your Mom.
Jane Shields: Following the broadcast, there was outrage from fathers’ groups in America, accusing the PBS of bias against separated fathers. PBS issued a statement saying that their research was extensive and supports the conclusions drawn in the program. However, they conceded that their ‘first person story telling approach’ did not allow the depth of research to be evident. PBS made another documentary on the issues, and this was broadcast in America in September last year. There will be a link with more information about that on the Background Briefing website.In Australia, PAS is not primarily a fathers groups versus mothers groups issue, and while in society, child sexual abuse is overwhelmingly committed by men, all professionals say that both fathers and mothers are capable of it, as well as of psychological and emotional abuse.At the University of Sydney, Dr Kim Oates is Professor of Paediatrics and Child Health. He was also head of Westmead Children’s Hospital in Sydney for ten years.While in the US, Dr Oates led a study looking at 550 cases of alleged sexual abuse. The purpose of the study was to assess the frequency of false allegations of sexual abuse made by children.His team found that there was enough evidence to substantiate that sexual abuse did exist in 43% of cases. In 23% there wasn’t enough evidence to be sure and the cases couldn’t go to court. And the team found that in about 30% of cases, there was no evidence either way. The question then is how many of the cases were shown definitely to be false?Dr Kim Oates.
Kim Oates: We only found 2-1/2%. 2-1/2% were false allegations, and then when we looked at those, 1% of the allegations that a parent had coached a child, so just 1%, and 1-1/2% were false allegations by children. So children do make false allegations occasionally, but very rarely, and that’s in contrast to the view out there that children make these stories up a lot. Now when we looked at the children, they tended to be older children, young teenagers. One was emotionally disturbed, one did it to get even with a father because of some anger; another one did it to impress a classmate. So it’s pretty unusual to have false allegations and unusual by very young children.
Jane Shields: Can children be coached into making false allegations of sexual abuse?
Kim Oates: There’s no doubt that children can be coached into making a false allegation of child sexual abuse, and in fact studies of true and false allegations in addition to that very large one of over 550 that we looked at, some smaller studies of 30 or 40 cases have put them into two broad groups: custody cases and non-custody cases. And there’s been a much higher incidence of false allegations in the custody cases, and they were false allegations, not spontaneously false by the child, but false because the child repeated something that the parent told them to repeat. So parents can influence children to tell a story, and bribe them and give them rewards for it. So there’s no doubt that happens, but it doesn’t happen very much, certainly in terms of that large study that we looked at, it was 1%.
Jane Shields: Dr Oates has a particular interest in child protection and child development, and says that public perception is that children cannot be trusted as witnesses.
Kim Oates: Well people have three concerns about children’s ability to tell the truth, and one is whether they’re honest or not, and the second is whether they’re suggestible, and the third is whether they’re prone to fantasy. And Judy Cashmore and Kay Bussey did a study back in 1996 of magistrates and judges in New South Wales, and they found that in fact honesty wasn’t seen by magistrates and judges as a problem. They thought kids were at least as honest as adults. But they did feel that children were more prone to fantasy, and prone to being suggestible. Now there isn’t any evidence that children, of six certainly, are prone to fantasy, and hardly any evidence at all that children fantasise about sexual abuse.
Jane Shields: Equally, the honesty of parents during custody disputes has been questioned.Critics of Parental Alienation Syndrome aren’t blind to the fact that ‘alienation’ can occur in distraught family separations, but as Dr Oates and others have shown, false claims are still very rare.Freda Briggs is Emeritus Professor of Child Development at the University of South Australia. She says the danger of the PAS theory is that it casts suspicion on all allegations of sexual abuse. She says this could too easily lead to genuine cases of abuse continuing, and to the child even being sent to live with the abusing parent.She has witnessed dozens of decisions in the Family Court and says that she has seen cases of substantiated abuse where the Court has ordered that the child be sent to live with the alleged abuser.Figures from Advocates of Survivors of Child Sexual Assault, formerly led by advocate Liz Mulliner, support this. Freda Briggs.
Freda Briggs: Yes, Jane, I accept that both mothers and fathers can alienate children from the other parent, but in this case we’re talking about allegations of sexual abuse which have often been confirmed by paediatricians and psychologists who have a lot of experience in these cases. Liz Mulliner, when she had ASCSA, had 21 cases where doctors had confirmed that the children had been abused, but the children were removed and given to the care of their abusers.I know of women who’ve lost their homes, who’ve spent up to a million dollars, usually their parents’ money, trying to protect their children through the Family Court, and they have failed. You would not go to those extremes if you weren’t convinced that your children were unsafe.Background Briefing has been swamped with material, both in general terms and specific case studies. But Family Law regulations are strict about any coverage of individual Family Court protagonists, particularly when they could involve identification of the children concerned.However, some mental health professionals are so concerned, they want to talk about their experiences with Parental Alienation Syndrome. In Queensland, Dr Brian Ross is a child and adolescent psychiatrist.
Brian Ross: There is certainly a group of children who demonstrate alienation in the context of Family Law Court disputes or custody disputes, and yes, parents can consciously and unconsciously alienate the child as part of that process. However, I think it is in the current environment of the Family Court, over-represented and used in a way that I think really lacks true scientific or medical validity in relation to what is a complex dynamics going on with children in custody disputes.
Jane Shields: He has worked as a psychiatrist with families in trouble, and recounts one case some years ago in which allegations of physical and sexual abuse were raised by a mother.
Brian Ross: She came to me because she had been told that maybe part of her emotional reaction to her husband might be influencing her relationship with her children, and her behavioural management of her children. My assessment over the years that I looked after her, was that that wasn’t the case, that she was trying to manage her children’s reactions in the context of their experience on access, and she was trying to set boundaries about her own emotional reactions to her former partner from that of her children’s emotional and behavioural reactions within the context of access.
Jane Shields: The final judgment in the case was to change the living arrangements so that the children would go to live with the father for most of the time.Background Briefing has talked to this mother, and has read the court proceedings. Part of her interview has been re-voiced to avoid identification.
Reader: I had absolutely no idea of the existence of PAS; I had no idea that it existed or that it was even used. And it is interesting looking back. At all times there was an underlying current, because the lawyers, the children’s reps, my lawyer and the father’s lawyer, and the judge, knew that this was going to be used against me, but nobody ever actually told me. So I always had a sense there was this underlying stealth, that there was something underlying underneath the surface, and I couldn’t actually find out what it was. And I didn’t until after the judgment, when I made sure that I really found out about it.
Jane Shields: Did they use the word ‘alienation’ when they were questioning you?
Reader: No, the court and the lawyers have become quite savvy to this, and they don’t so much use the term now, PAS, or alienation, but the underlying theory that they are using, or the underlying flow, is that you are what they call an alienator, meaning you will destroy the children’s relationship with their father and you will go to any lengths, including fabrication of abuse or even sexual abuse, in order to achieve that.
Jane Shields: Dr Brian Ross, who was counselling this woman on her relationship with her children, also gave statements to her lawyers about her mental state.
Brian Ross: I was phoned by her lawyers to be asked about the mother’s presentation, her mental state, and whether in fact this mother may be on a campaign to alienate or denigrate her former partner with these allegations made by the daughter. It was my opinion, having known this other over a number of years, that I felt that she was trying to act protectively, she was wanting to seek the correct avenues to get appropriate support and counselling for her daughter, and trying to seek appropriate legal avenues to protect further abuse. It was not her intention to denigrate or remove access or contact. She recognised the relationship her former partner had with her children was ongoingly important for the children’s wellbeing, but she was wanting to act protectively to prevent any negative impact of things that were reported to her to be ongoing.
Jane Shields: Dr Ross is convinced that there was an agenda to paint the mother as an alienator.An independent psychiatric assessment of the mother also supported his statements, and recommended that the children remain in the primary care of their mother. In the final judgment, the Court didn’t agree.There is a larger issue within all Courts about the testimony of expert witnesses, that we are not able to cover in this program.Brisbane psychologist, Sue Aydon, also had dealings with parents and children before the Family Court, and has attended Court hearings. She believed at first that she would be asked to provide the Court with information based on her knowledge of a family and the children.
Sue Aydon: I was part of a number of professionals who’d seen these children. We all work in private practice but we do have dealings and discussions with each other when we have a client between us, and seeing as we’d had quite a long sort of association and counselling with the children, we felt that this was important that we went along, and actually voiced what the children wanted, and what we knew of the children, to give an overview of how the children were going and what was happening, what the problems were. You know, general evaluation. We felt that that would be really important for the Court, because we thought we could give it an objective assessment essentially.
Jane Shields: So you get into the witness box. Can you describe for us what happened next?
Sue Aydon: Well essentially, the problem with the Family Court is that it’s adversarial. So we had a very, quite aggressive barrister on the father’s side, and quite attacking. So really their means of dealing with the situation in that circumstance is s to really just try and denigrate us and take away our credibility. So essentially that’s what happened in court.
Jane Shields: Were you in fact asked any questions about the children?
Sue Aydon: No, there were no questions asked about how the children were going and what they thought, and yes, none at all.
Jane Shields: So the questions were really about your professional credentials.
Sue Aydon: Oh, very much questioning our credibility and our objectivity. So we were very much painted as being biased, even though in many ways for us, there’s no need for us to go along and be biased, we actually felt that we were trying to provide a good overview, and trying to really support the children in what they wanted.
Jane Shields: All Family Court cases are complex and difficult. The issues run deep in the family dynamics, and both mothers and fathers can come away deeply scarred, angry and frustrated with their dreams dashed, and their children torn apart. Sometimes there are years of claim and counter-claim, using many, many professional expert witnesses, not all of whom agree. But very few are happy with the influence that PAS on the Courts.There are many studies and anecdotal evidence that PAS is supported by people in Family Law, and that it’s being referred to under a series of different terms, including severe alienation, brainwashing, coaching, vilification of the other parent, and enmeshment.It’s not surprising that research into child sexual abuse shows that it is frequently a cause of a family breaking up and the parents living apart. More disturbing is that the research also shows that there is more likelihood of child sexual abuse after parents have separated. Professor Thea Brown.
Thea Brown: You can see how that happens. You can see that if a person in a marriage or a relationship starts to believe that the other partner is abusing their child, or a member of the other partner’s family is abusing their child, because sometimes it’s grandparents and aunts and uncles and cousins, you can see that they start to think that the only solution to this problem is that they separate from that partner. And then they start to realise that this is just the beginning of the trouble, not the end of the trouble, because they’ve got to go to court and make arrangements for residence and contact. And then they get involved in a really bitter dispute with their partner. Because most people who perpetrate abuse, particularly people who perpetrate sexual abuse, don’t easily admit that. They don’t say, ‘Yes, I’ve done this and I will do what I can to solve this.’
Jane Shields: Thea Brown is Professor of Social Work, with Melbourne’s Monash University. In her book published this month, Professor Brown says that over recent years child abuse in the context of parental separation has emerged as a growing and troubling problem.
Thea Brown: In some families, the behaviour doesn’t become noticed until the separation has actually occurred and there’s evidence to show that sometimes the abuse doesn’t actually happen until the child is with only the one parent, that the opportunity presents itself when it’s a contact visit for that kind of abuse to happen. There’s also the problem that the abuse has happened before, but the child doesn’t say anything until they are left with only the one parent. That means either with the residential parent, or with the contact parent.
Jane Shields: Professor Brown says she’s been very surprised to find that there is still support among people working in family law for the idea of parental alienation syndrome as a psychiatric illness, one which is dealt with by removing the children to the other parent’s home.
Thea Brown: I had imagined when we started our research that these kinds of views had died, because I always associated parental alienation syndrome with the past, and I thought that people had walked past that. But I’ve certainly discovered it isn’t true, and I’ve certainly found it from the research that I’ve done and one of my PhD students who did similar research in Western Australia, found that it is still alive and well and believed by quite a lot of people who work, generally speaking, in the Family Law area.
Jane Shields: Thea Brown says that she believes the PAS ideas are mainly coming up through the courts from the supporting staff: the psychologists, psychiatrists, and social workers who prepare reports for the Family Court.
Thea Brown: Certainly it’s fairly widespread among those professionals that Parental Alienation Syndrome does exist.
Jane Shields: What sort of evidence did you see of the application of that sort of alienation theory?
Thea Brown: Well where we saw the evidence was in the reports that came to the court for decisions in the residence and contact disputes, and they were reports that are done by psychologists and psychiatrists and social workers that are commissioned by the parties in the case, or sometimes by the local Legal Aid office, and sometimes by the Court itself.We saw it more commonly there than being expressed in the judges’ decisions, although I know that some people criticise the judges quite strenuously for implementing that kind of view, but we found that the judges were very strongly influenced by the expert reports. And in our study we found that usually, that is in 70% of cases, the judge would follow the recommendations of the court-appointed expert.
Jane Shields: And Thea Brown says many of the experts preparing reports for the Family Court are still influenced by the PAS theory.Several professionals raised the issue of PAS with her during research interviews late last year.
Thea Brown: I have certainly been told about it, and told that this is the situation, that this parent and it’s very often the mother, is working towards alienating the child from the father. And it’s really amazed me that professionals that I am interviewing for research projects, would take that extra step and say to me, ‘And you should know this, you should know that this is happening.’ And I have been really quite surprised about it. The PhD student who did the work in Western Australia, Dr Alison Hay, she found that extremely prevalent in the West Australian Family Court.
Jane Shields: Professor Brown is planning more research on the topic of PAS and its application in the courts.Meanwhile, Professor of Child Development at the University of South Australia, Freda Briggs, says she continues to hear from parents who say they have been labelled with PAS and she wants it discredited in Australia.
Freda Briggs: The PAS theory has no academic or any other credibility. It’s been banned in the court in America, and I’m just puzzled why our judges don’t take any notice of what’s happening overseas. It was described by Professor John Conte, who is well-known in the chid protection area; he’s in the University of Washington and as long ago as seven years ago, he said that it’s the most unscientific piece of garbage he’s seen in the field in all his time. And Dr Paul Fink, a past President of the American Psychiatric Association, President of the Leadership Council on Mental Health Justice and the Media said that PAS as a scientific theory has been excoriated by legitimate researchers across the nation, judged solely on its merits Dr Gardner should be a pathetic footnote of psychiatry or an example of poor scientific standards. So why are we behind the rest of the world in still using it.
Jane Shields: Background Briefing put some of these arguments to the Chief Justice of the Family Court, Diana Bryant. She is adamant that the syndrome is not being accepted by judges of the Court.Chief Justice Bryant.
Diana Bryant: As far as I’m aware in my experience, and I’ve looked at a number of recent cases, there are almost no experts who give evidence in the Family Court who subscribe to the view that there is a Parental Alienation Syndrome. And the decisions of the court do not accept that there is a Parental Alienation Syndrome. I went through all of the decisions, doing a search, putting the words in, since 2003. The words Parental Alienation Syndrome come up quite a lot in the judgments, but they’re referred to because that’s usually what one party alleges.In only one case since 2003 did I find a judge who had an expert before him, who said there was such a syndrome. Subsequently, in other decisions in that registry, judges have said that they don’t accept the evidence of the expert on that point.So it isn’t something that the Family Court accepts. All of the internal counsellors that are in the court subscribe to the view that there is no valid condition as Parental Alienation Syndrome.
Jane Shields: Freda Briggs is very respected and she has witnessed cases where there’s been substantiated abuse and the custody arrangement has been reversed.
Diana Bryant: I don’t agree with that. I know what Freda Briggs has said in a number of cases, and she is well respected. However, they are her views. The point is that people will say, people – sometimes they’re experts who come in on the side of a particular parent – and they will truly believe that it might have occurred; they may believe the party that abuse has occurred. But the person who actually makes the findings in fact at the end of the day is the judge, who hears all the evidence. And simply because an expert, or anyone says to you, ‘I’m sure there was abuse in this case’, doesn’t mean that there was. It’s the judge in the end who has to make the decision, and they’re hard decisions. None of us like to do it, none of us like to be confronted with having to determine whether or not abuse has occurred.
Jane Shields: Would you consider a review of any cases where that is alleged?
Diana Bryant: We put cases up on the internet. They’re anonymised cases and they’re cases dealing with it. I published a case because I thought it was in the public interest to do so last year, a case in which Dr Wood, who’s recently been writing in the paper, gave evidence, and there were experts on both sides, and the judge made a decision, and that case is published on the internet for everyone to read, and I’m happy for people to have informed debate about it.