Green & Green [2024] FedCFamC1F 896

Introduction

Green v Green [2024] FedCFamC1F 896 is a landmark case in the Federal Circuit and Family Court of Australia (Division 1) that delves into the intricate balance between allegations of parental alienation, the mental and emotional wellbeing of a child, and the fundamental principle of ensuring a child’s best interests in family law disputes. The case provides crucial insights into how courts assess and implement interim parenting orders, particularly when competing allegations of coercive control, family violence, and the child’s mental health concerns are at play. It underscores the judiciary’s cautious approach in making determinations that could have long-term consequences on a child’s psychological and emotional development.

Background

The case concerns a dispute between Mr Green (the father) and Ms Green (the mother) regarding their 12-year-old child, Y. The parties began cohabitating in 2001, married in 2009, and separated in January 2023. Since the separation, Y has lived with the mother.

The father sought interim orders for Y’s residence to be changed to his care, arguing that the mother was engaging in parental alienation and that she was failing to meet the child’s emotional and educational needs. The mother opposed this, contending that Y’s mental health was fragile, and a forced change of residence would place him at significant emotional and psychological risk. Additionally, the father is facing ongoing criminal proceedings related to allegations of sexual assault made by the mother.

Since the separation, a series of interim consent orders were made, initially allowing only supervised visits with the father, later transitioning into unsupervised time. However, as of October 2024, Y had stopped spending time with the father altogether. The father’s application for interim orders sought to reinstate his role as Y’s primary carer before a final hearing.

Key Legal Issues and Questions for the Court

The case raised several significant legal issues:

1. Primary Residence of the Child: Whether the child’s residence should change before the final hearing due to allegations of parental alienation and wellbeing concerns. Considered under section 60CC of the Family Law Act 1975 (Cth), which assesses the child’s best interests.
2. Parental Alienation: Whether the mother engaged in parental alienation and whether this has contributed to the child’s reluctance to spend time with the father, as discussed in Banks & Banks [2015] FamCAFC 36.
3. Mental Health and Wellbeing: The extent to which the child’s mental health, including allegations of suicidal ideation, justifies maintaining the current parenting arrangements.
4. Impact of Criminal Proceedings: The relevance of the father’s ongoing criminal proceedings in determining the child’s best interests under the Family Law Act 1975 (Cth).
5. Therapeutic and Educational Support: What arrangements should be made to ensure the child receives appropriate psychological support and education during the parental dispute.

Case Authorities and Cited Precedents

The Court relied on several key cases and legal principles, including:

1. Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 – Clarified that interim proceedings should focus on urgent matters while leaving complex factual disputes for the final hearing.

Link: Full Case

• Cowling & Cowling (1998) FLC 92-801; [1998] FamCA 19 – Established that courts should avoid making findings of fact on contested issues in interim proceedings.

Link: Full Case

• Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) – Identified three essential elements required to establish parental alienation.

Link: Full Case

• Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B) – Reinforced the importance of a holistic approach in evaluating parental alienation claims.

Link: Full Case

• Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221 – Emphasised the need to prioritise children’s safety and mental health in family law disputes.

Link: Full Case

For the complete list of cited cases, please refer to the full judgment.

Court’s Findings

1. Interim Change of Residence: The Court dismissed the father’s application for an interim change of residence, finding that an abrupt transition could negatively impact Y’s mental health.
2. Parental Alienation Claims: The Court acknowledged allegations of parental alienation but determined that these required further examination at the final hearing and could not be resolved at the interim stage.
3. Mental Health Considerations: The Court found that Y’s distress, including expressions of suicidal ideation, required urgent psychological intervention, leading to orders for immediate mental health support.
4. Schooling Arrangements: The Court ordered that Y continue attending C School, considering it appropriate based on geographic and educational factors.
5. Parenting Time Arrangements: The Court ruled that Y would spend time with the father only in accordance with his wishes, recognising that enforcing contact could lead to emotional distress and non-compliance.

Legal Implications and Precedent Summary

This case reinforces several key principles in Australian family law. Courts must exercise caution when issuing interim parenting orders, avoiding premature factual findings, and prioritising the minimisation of harm to the child. Allegations of parental alienation require thorough investigation at the final hearing, as courts are reluctant to make conclusive findings without comprehensive evidence. The case also highlights the importance of mental health considerations, particularly when suicidal ideation is alleged, before enforcing parental contact. Furthermore, the preferences of older children must be given considerable weight, particularly when concerns exist about emotional harm or resistance to contact.

Keywords

• Family Law
• Parenting Orders
• Parental Alienation
• Child Mental Health
• Family Violence Allegations
• Federal Circuit and Family Court of Australia
• Best Interests of the Child
• Interim Parenting Proceedings
• Psychological Wellbeing

Conclusion and Call to Action

Green v Green [2024] highlights the complexities of parenting disputes where allegations of parental alienation, mental health concerns, and the best interests of the child must be carefully balanced. The case underscores the Court’s cautious approach to interim orders, particularly when serious allegations and psychological distress are involved. It also reflects the evolving nature of family law in addressing the preferences and wellbeing of children.

At Pentana Stanton Lawyers, we know that every family law matter requires a tailored legal strategy. Whether you need guidance on parenting orders, parental alienation claims, or child welfare issues, our experienced team is here to help.

Contact us today for expert legal advice and strong advocacy to protect your rights and your child’s best interests.