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15 September 2017

Stuck in the middle with you

Family Law
Federal

Asked

Children – Alienation – Best interests of the child – Recovery order

Dear Mentor, 

I act for the mother of 2 young children aged 11 and 14. The parties separated 4 months ago. The husband moved out and the children continue to reside with the wife in the matrimonial property.

Despite repeated requests not to involve the children the husband refuses to refrain from discussing the issues with them, and encourages them to leave the mother.

Eventually the elder son went to the father's office after school and refused to return home.

The husband through his lawyer wants my client to hand over the younger daughter, saying it’s better for the children to stay together.

What should I do?

Can I apply for a recovery order if the son went to the father voluntarily, even if this is the result of repeated discussions with the child by the father?

How can I establish that it is not in the children's best interest, given that the father refuses to refrain from discussing the dispute with the children and instead attempts to use the children as leverage?

Answered

Thank you for the question.

Your client could apply for a recovery order, however it may not be successful. Given the age of the child, if the child says he doesn't want to return to the mother it is likely that the court may let the child remain with the father, pending therapeutic intervention and a family report.

If the father's behaviour does not change, notwithstanding the intervention of the court, your client may need to consider seeking orders that the father's time with the children be limited to avoid further attempts at alienation. The following cases deal with alienation and provide some guidance as to the court's approach:

Bangi & Belov [2017] FamCAFC 5

Sandford & Cobb [2016] FamCA 11

Arranzio & Moss [2015] FamCA 544

You don't need to establish that alienation is not in the children's best interests. The court knows that and the key is how to deal with it.

The priority really is for early intervention – both by the court and therapeutic – because the longer it goes on the more damage is done to the relationships.

As to the father's claim that the children are better together, your client's position is they should be together with her and not exposed to his manipulation.

Your client would also seek to injunct the father from discussing these matters with the children.

On the question of family dispute resolution, your client could seek an exemption on the basis of urgency.

Lastly, these types of cases can be difficult and require multiple court appearances to deal with breaches and other interim issues. It would benefit your client's case to have the involvement of experienced counsel at an early stage.

Regards

Mentor