The construction of children in Australian family law child resistance cases

A pertinent issue in Australian family law parenting cases is how the court responds to children who resist contact with one of their parents. In the literature, child resistance is usually labelled as parental alienation whereby children are deemed to have been manipulated by one parent to resist contact with the other. Critics have exposed how allegations of parental alienation have been gendered and that constructions of mothers as manipulative and vengeful have undermined crucial aims of the family law regime to protect children from violence. However, in focusing on gender, the literature has failed to consider the constructions of children and how these constructions may silence children and the reasons they are resisting a parent. Accordingly, this thesis draws on interdisciplinary perspectives on the construction of children to undertake a descriptive content analysis of case samples in which children are resisting contact with a parent and allegations of parental alienation are raised. This research was inspired by the High Court’s decision in the 2017 child resistance case, Bondelmonte & Bondelmonte. This case demonstrated the wide discretion Australian family law judges have in giving weight (or not) to a child’s views in determining what is in the best interests of the child. The analysis of case samples in this thesis revealed that, similar to Bondelmonte, the judges had a tendency to ascribe children as vulnerable, which diminished their status as rights-holders. Furthermore, children’s perceived vulnerability impacted on the weight judges gave to children’s views as the more vulnerable the court considered the child the less weight was given to their views. It was evident that this was the more likely outcome if the judge found parental alienation had occurred and if the child was resisting contact with a parent for reasons other than violence. Notably, instances were found where judicial concern about parental alienation appeared to silence the concerns of the child about having contact with a violent parent.