Family Law and Therapeutic Practice

When a parent presents to a practitioner with a child in the context of an acrimonious separation it is easy for the practitioner to become caught in the triangle between parents and children, to the detriment of the child. The practitioner may be asked to keep the therapeutic process a secret and it is crucial that we are clear about the boundaries between therapeutic practice and legal obligations, and be able to explain these confidently to the client. The following was prepared for a father who objected to the practitioner taking steps to contact a mother who had been alienated from her child and denied contact on the grounds that she was suffering a mental illness.

Parental separation makes this a Family Law matter. In consequence, your practitioner must conform to the processes and protocols of the Family Court and the Federal Circuit Court when working therapeutically with a child of separated parents, especially when the relationship between those separated parents is fractured.

Family Law is clear, the child has a right to a substantial relationship with each parent and each parent has a right to a substantial relationship with the child. It requires all practitioners to respect and support this position in the decisions they make in the conduct of the therapeutic/clinical process. Practitioners are not allowed to undermine this position or support the alienation of a child from a parent unless that position is directly supported by the Law. Any practitioner who acts to alienate a child and parent outside the Law immediately puts their registration as a practitioner in this field at risk.

This position can at times be varied if there is a child protection issue. Child protection is subject to different legislation and is also provided for in Family Law. Child Protection ordinarily takes precedence over Family Laws. In South Australia a child protection issue must be reported to the State through the Child Abuse Repot Line. Under those circumstances it is possible for a different interim decision to be taken about a child’s relationship with one or both parents until the matter is investigated and perhaps resolved one way or the other. My understanding is that this is not at this point in time a child protection matter. You may have a different view about this and we are happy to address this with you.

The practitioner is correct in his approach to this matter and correct in recommending a process to address and perhaps remedy the fracture between the two of you as parents. They are also correct in not undertaking that remediation process himself. They have an obligation in a matter such as this not to unreasonably exclude the voice of the non-residential parent from the therapeutic/clinical process with the child.

A formal diagnosis of a mental illness or the existence of a mental health problem is not ordinarily a sufficient reason to exclude or silence the voice of that other parent. The practitioner can and should take such statements seriously, but they cannot exclude a parent’s voice on that basis. These are all matters for a ‘family court’ or a ‘children’s court’ to address for the practitioner is not judge and jury in this matter.

Furthermore, not excluding the voice of the non-residential parent does not automatically mean that parent is included in the therapeutic process. Far from it. This is and remains the practitioner’s call, alone or in collaboration with others, including one or both parents. They must decide who should be included and excluded in the therapeutic process with a child and how that decision will be made.

If in the practitioner’s opinion the fracture in the parental relationship is integral to the causation and/or remediation of the child’s symptoms or problems then it is not unreasonable for them to find a way to address this fracture, notwithstanding any domestic violence or child protection allegations. Exactly how this is done will be negotiated between them, you and any other parties involved in this matter. This approach is not negotiating away violence, child protection, mental illness, or mental health challenges. In fact, if the practitioner forms the view that this is a child protection matter, Bower Place will take a robust position over the management of that child protection matter.

I trust that this explains the situation a little further for you. It is complicated and it is the practitioner’s task to steer this therapeutic/clinical process through a complicated set of sometimes contradictory laws and protocols designed to protect children and protect the rights of children and parents. In doing so they must not become the child protection and domestic violence judge and jury. Other authorities including those responsible for administering family and child law hold that authority. If those issues are significant in this matter, then you will need to consult those authorities and obtain relevant direction and decision to constrain the therapeutic/clinical process from including the other parent. We are in no position to provide you with legal advice about such an action except to note that it is your right.