by Jess Hill
Gardner invented parental alienation syndrome in the mid-1980s, when society was reeling over what seemed like a sudden epidemic of child sexual abuse. In just ten years, reports of child sexual abuse had risen eighteen-fold.#24 What made the logic behind PAS especially incoherent was the fact that while Gardner claimed that 90 per cent of sexual abuse allegations in custody cases were false, he also claimed that adult–child sexual relations were ‘ubiquitous’.25 In his view, however, sex between adults and children was not problematic: the problem was the way society reacted to it. In his 1992 book True and False Allegations of Child Sex Abuse,26 Gardner condemned what he called ‘sex-abuse hysteria’, and outlined his staunch opposition to society’s ‘overly moralistic’ and punitive approach to paedophilia: ‘It is because our society overreacts to it that children suffer.’27 Gardner also advised therapists treating child sexual-abuse victims to work with the whole family to help older children ‘appreciate that sexual encounters between an adult and a child are not universally considered to be reprehensible acts’.28 As for any mother raising the abuse in court to stop contact between a father and a child, she should also be helped to appreciate that such child–adult sexual encounters are common.29 The father, on the other hand, should be reassured that ‘there is a certain amount of paedophilia in all of us’; however, in these modern, puritanical times, he must ‘learn to control himself if he is to protect himself from the Draconian punishments meted out to those in our society who act out their paedophilic impulses’.30
Reading Gardner’s extensive – and disturbing – literature on child abuse, one conclusion looms large: he devised parental alienation syndrome to hide child sexual abuse from the eyes of the law.
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Gardner stood by his theories until his suicide in 2003. By then, PAS had been discredited as a ‘syndrome’ and disavowed by psychiatric associations.31 To devote so much attention to this deeply flawed individual may seem a distraction in a discussion of Australia’s family law system. I wish it were, but Gardner’s arguments have clearly had a significant influence on how our system responds to allegations of child abuse.
Diagnosing parental alienation syndrome is no longer permitted in Australian courts.32 However, referring simply to ‘parental alienation’ (without diagnosing it as a syndrome), is still widely accepted.†
When divorce turns bitter, parents don’t always spare children from the vitriol. But kids are pretty resilient, and it takes a lot to turn them against a beloved parent. Indeed, clinical research has shown that even where parents engage in ‘indoctrinating behaviours’, only a small proportion of children end up turning against the other parent. When it does happen, it’s a horrific experience for the innocent parent.
But the way the family law system is responding to so-called ‘alienation’ is alarming: Gardner’s ‘cure’ – severing contact for months between ‘alienating’ mothers and their children – is still being written into Australian parenting orders, despite what we know about the harm done to children when they are separated from their primary attachment figure. Remember Ginger and her two children, at the opening of this chapter? She was prohibited from contacting them for six months. Her crime? Apparently she had alienated her children against their father.
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Ginger is just one of many mothers to have lost custody on the basis of alienation.
The first I ever heard of this was during a phone call one rainy afternoon in Melbourne, when I spoke to a woman I’ve called ‘Sandra’. She told me about her battle to protect her children and herself from domestic abuse, about how she’d walked in on her ex-husband being indecent with her children, and how she had then believed them when they later made sexual abuse allegations against him. When she presented these allegations to the Family Court, she said, a judge decided she had alienated her children from their father and, as a result, removed them from her custody and ordered them to live with their father. We spoke for two hours and, though I was intrigued, I didn’t really believe what she was saying. I promised to look into the story, but I did wonder if Sandra was just a mother’s version of a father’s rights activist, spinning her story for a certain effect.
Then I read the judgement.
In 2014, a judge in the Newcastle Family Court ordered that Sandra’s two children – both under nine – be removed from her care.33 This followed Sandra supporting both children’s allegations of sexual abuse against their father, ‘Robert’, based on statements made by both children, ‘Tim’ and ‘Sally’. Sally had made the same statements to her maternal grandparents, the police, child protection services and a counsellor: that she’d been asked to ‘rub’ and ‘look at’ her father’s ‘private parts’. Child protection had also intervened in proceedings, finding that the father was a risk of sexual harm to one or both children. In an extraordinary departure from standard procedure, Justice Margaret Cleary made the parenting orders after-hours in an ‘ex-parte’ hearing (meaning the parties to the case, including Sandra and child protection services, weren’t present). Ex-parte hearings are justified when there is an immediate risk of harm or flight – neither of which was believed to be a factor in this case. Unlike regular hearings, it was not audio-recorded and was held in secret, on the advice of the ‘single expert’ who had assessed the family for the court. That expert was the same Dr X used in Tina and Lucy’s case.
It’s clear the judge based her orders on the findings in Dr X’s report. The judgement included the following quote: ‘I don’t believe the sexual abuse on balance is likely to have occurred. This has been more the anxiety of the mother which has been projected onto the children. I believe the only alternative now is for the children to be placed with the father. I recommend this happen immediately and without notice.’
The following day, without warning, Sandra’s two young children were fetched from class and told they were going home early. ‘The day the children were taken,’ Sandra recalls, ‘I had gone to the school and talked very briefly to the school principal to say, just as a heads up, we now have a final trial date, and that child protection had recently filed an affidavit with the Family Court, advising it believed one or both children were at risk of sexual harm in their father’s care.’ What happened next was devastating. ‘Within an hour and a half of getting home, the principal rang, saying the most shocking thing had happened – almost as soon as I had left, two officers arrived and presented court orders that the children were to be immediately removed to go and live with their father.’ Sandra was ‘gutted’. ‘I just couldn’t believe it … Why didn’t they at least involve the [child protection] department?’
When Sandra received the orders, she discovered she was prohibited from seeing or even speaking to her children for the next two weeks. Following that, her access would be restricted to a couple of hours every fortnight and monitored by a supervisor, which would cost Sandra $65 an hour. When Sandra made an urgent application to challenge the decision, the judge refused to hear it, because ‘it would not afford the other parties procedural fairness’.
On appeal, the Full Court said that Sandra had been ‘denied procedural fairness’, and it was not ‘necessarily persuaded … there was sufficient justification for making orders which removed the children from the mother’s care without giving the mother the opportunity to be heard … Moreover, there were apparently unresolved concerns about the risk of abuse of the children by the father.’34 Nonetheless, the court left the children with the father, citing a future hearing scheduled in over a month’s time.
After the final trial, the court went to the extraordinary length of adding a clause prohibiting Sandra from showing anybody [besides her lawyer] documents relating to her case. By connecting with others who were involved in this case, I was able to review the documents, for just a few hours.
One of the documents I trawled through was a signed affidavit from the children’s head teacher, written after the children were removed. Attached to it was a letter he sent to child protection, detaili
ng his ‘great concern’ over the ‘extraordinary set of events’ that occurred the day the children were handed to their father. ‘In my opinion [as an educator of young children for over twenty years],’ he wrote, ‘the process was ill-conceived, poorly executed and traumatic to the children in the extreme.’ When they saw their father, ‘both of the children appeared to stop and freeze’. When they were told they’d be living with their father, the little girl ‘took a small step backwards … [and asked] for how long? It was the look of extreme concern that troubled me most of all,’ he wrote. ‘This young child appeared very frightened at the prospect of spending an indefinite period of time with her father.’ In summary, he wrote, ‘The look of betrayal I received from the children when they first saw their father waiting for them was very disconcerting. I hope I have not permanently damaged the children’s trust in me.’
Three other letters attached to the affidavit, written by the children’s teachers, observed changes in the children that had occurred after they were ordered to live with their father. The little boy, Tim, had changed from ‘bright, happy and bubbly’ to ‘inward and withdrawn’, his eyes ‘constantly vacant and emotionally unresponsive’. His younger sister, Sally, had withdrawn from friendships, and appeared to be a ‘very sad and insecure little girl’. On several occasions, she arrived at school crying and upset, and seemed ‘lost and fragile’. Her behaviour had changed markedly: she had begun saying mean things to other children and telling on them ‘a great deal for insignificant things’. ‘This not only breaks my heart to be witnessing,’ wrote one of her teachers, ‘but I believe it is worrying and worth reporting on a professional level as well.’
In the final hearing, the court ordered the children into the care of their father, again favouring the expert evidence of Dr X. Six months after the children were removed from Sandra, Robert moved them to another school.
Sandra says she still can’t believe the court would tear the children away from their primary attachment figure when there was no evidence she or her grandparents were a threat to them. ‘We are all that my daughter has ever known, because he left when she was five weeks old,’ she says, adding that Robert had a mix of unsupervised and supervised visits since that time. ‘I now have to pay a supervisor to monitor my visits with the children … [In the single expert report] it says I’m a capable, caring parent: no psychosis, no mental illness, no personality issues, not a threat to the children. So why are we being supervised? What risk are the children being protected from?’ Fighting the orders was sending Sandra to the wall: four years in the Family Court had cost her more than half a million dollars.
On the afternoon I spent with Sandra discussing her case, we spoke for four hours straight, barely moving to turn on a light when the birdsong rose to a cacophony and the sky darkened, leaving us in the dim. She described how she had twice caught Robert playing with his erect penis in the bath with his legs wrapped around Tim, and explained that was one of the main reasons she left him the following year. She told me that Robert became abusive towards her when she stopped earning the family income and discovered his porn addiction, around the time she was seven months pregnant with Sally. Once she’d separated from him he threatened to kill the dog and smash the windows to get back into the house. In previous hearings, the judge excluded from consideration the two-year AVO against Robert on the basis that it was ‘historical’. Sandra recalled with a chill his threat to see her ‘homeless, penniless, childless’.
As my interview with Sandra was winding up, her father, ‘Richard’, who lives with her mother upstairs, invited me to stay for dinner. I was mindful of keeping a professional distance, but it felt rude to refuse. As his wife, ‘Charlotte’, prepared the meal, Richard sat with me in the loungeroom and told me about the first time his granddaughter disclosed to him. ‘We were sitting on our verandah, and our little granddaughter … came across to Grandma and me, and said to me, “Grandpa,” – and I won’t use his name – “asked me to rub his privates.” I was taken aback and said to her, “And what did you do?” And she said, “I said, ‘No,’” upon which I said words along the lines of, “That’s good, because that’s not nice.”’ Richard had seen Robert’s inappropriate behaviour with his own eyes, and recalled with a look of disgust suggestive comments he’d heard him make to Sally.
In the Family Court orders, Richard and Charlotte were also prohibited from seeing or speaking to the children – for five months. No reasons were given for imposing these AVO-like conditions. ‘One wonders what one has done to be made to feel like a criminal,’ Richard said hoarsely. ‘On one of the phone calls – after a phone call to their mother was eventually allowed – the kids asked, “Are grandpa and grandma still there?” And they wanted to know could they please speak with grandpa and grandma? And of course, if we’re going to follow the court orders – which any law-abiding citizen really has to do – then you can’t speak.’ When Sally turned four, he was prohibited from wishing her a happy birthday, so he played ‘Happy Birthday’ on his trumpet to her down the phone.
I first met Sandra’s family in the winter of 2015. The children are now ten and fourteen. Last year, nearly four years after he was ordered to live with his father, Tim returned to live with his mother full-time. When he came back to her, Tim told Sandra he had confronted his father, saying ‘I don’t want my little sister to be raped.’ Robert had then texted Sandra, saying Tim ‘does not want to be here, I can’t get through to him, can you collect him … as soon as suits please’. Tim remembers seeing Sally, who would be staying with her father, sobbing at the front door. Months after coming home, Tim revealed to Sandra that he had tried to bargain for his little sister. ‘I told dad, if you have to keep someone, keep me and let her go.’ He described how he planned his escape soon after they went to live with their father, and how Tim’s best friend had promised to bring him food and let him live ‘at the bottom of his garden’. When Robert found out he wanted to leave, he told him, ‘You told Dr X you wanted to live with me.’ Tim replied, ‘Dr X is a liar.’
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If it seems strange that such astonishing stories rarely appear in the media, there’s a reason for that. Publishing anything about a family law case that might identify someone – from their ethnicity to what they do for work – is a crime. Faces can’t be seen, real voices can’t be heard; barely a descriptive turn of phrase is permitted under this clause. Penalties for breaching this privacy legislation – Section 121 of the Family Law Act – are heavy: journalists may be fined, or even jailed for up to a year. No surprise then that journalists and editors are extremely reluctant to venture into this treacherous territory. When I started writing about it, several colleagues said I must be crazy. While Section 121 was originally designed to protect children’s anonymity, it is now arguably doing more harm than good. By shrouding the family law courts in secrecy, Section 121 allows bad behaviour within the system to go unchecked.
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Nothing makes domestic abuse or child abuse disappear faster than an allegation of alienation. Family lawyers know this, and they know which single expert will give them a report to suit their client. This was made clear in research from Griffith University criminologist Samantha Jeffries. As one lawyer explained to her, ‘When I worked in private practice we would look for report writers who … don’t report on the violence because that was in our client’s [the perpetrator’s] interest.’35
I wanted to find out exactly how these single experts did their assessments, so I decided to seek a few of them out.
I met child psychiatrist Christopher Rikard-Bell in 2015 in his practice. Generous with his time, he sat with me for over an hour. Rikard-Bell is one of the Family Court’s most prolific single experts: as he explained, in the past twenty-five years he’s probably evaluated around 2000 families. He said his regular caseload featured the narrow group of ‘highly conflicted’ cases in which allegations of abuse are often made. Speaking specifically about allegations of child sexual abuse, his ‘guesstimate
’ was that these comprised about 1 per cent of the court’s cases.
To be clear, I asked him: ‘Okay, just so I know that we’re not talking about a specific subset of child sexual abuse allegations, but the whole set of allegations equals about 1 per cent?’
‘I think so, yes.’
As we sat down, I mentioned the comments made by Justice Collier, about the mothers he believed were increasingly fabricating child sexual-abuse allegations. ‘I don’t think it’s just a simple case of mothers making up allegations,’ he replied, explaining that what he sees most are overprotective parents, anxious about letting children out of their sight, who end up questioning their children and – when they get ‘unclear answers’ – often ‘develop their own illusion of validity about abuse’. When I asked him how often he saw children under twelve making up or exaggerating allegations of abuse, he said, ‘I think in the Family Court – in this very severe, highly acrimonious group, where parents are making allegations against each other through their children – that there are a lot of false allegations.’
I pressed him to tell me roughly what percentage of allegations were unfounded. What about child sexual abuse, for example?
‘In my experience, about 90 per cent are unfounded, in this very narrow, small group that are highly conflicted,’ he said, matter-of-factly. ‘So, there is still sexual abuse and physical abuse that comes through, but a lot of the people who end up in the Family Court are highly motivated people, and highly competent people, so they’re a different group from say the lower courts, or the Children’s Court.’§