Berrington & Farndale 2015 FamCA 183


The parents separated before the child was born.  The child who was aged 7 years at the time of the hearing had lived with the mother for six years before a family court issued an order that reversed the living arrangement so that the child live with the father in another city.  Final orders were made after the child had lived with the father for 8 months.  The mother appealed and requested that the child return to her care.

Evidence was provided by an assessor, a psychiatrist who assessed the mother, and by relatives.

The judge made the following findings and issued associated orders.

  • Both parents at times withheld the child without reasonable excuse.
  • Both parents engaged in unrestrained arguments in front of the child, exposing the child to parental conflict.
  • The parents did not agree on major long term issues including religion for the child, schooling, and did not inform each other about the child’s health.  Communication between the parents on important matters was poor, and both parents allowed the child to pass messages.  Both parents followed a practice of making unilateral decisions when the child was in their care, and did not consult with the other parent.  The judge noted that respectful shared or collaborative parenting requires parents to consult over major long term issues, and that shared parental responsibility is contra-indicated when parents remain in high conflict over major topics (co-parent).
  • The mother was diagnosed by a psychiatrist with an adjustment disorder with symptoms of anxiety (mental illness).  Symptoms included panic attacks that reportedly resulted in the mother losing consciousness.  The anxiety led to the mother being unable to attend Court but reportedly did not affect her parenting capacity.  The mother’s behaviour at times became volatile and she became combative and verbally aggressive and argumentative, and she had made threats to several people associated with court proceedings (personality aggressive).
  • The mother was referred to a Drug Diversion programme after equipment associated with substance abuse was found in her house.  The mother associated with a man who was charged with drug offences, but she denied that she exposed the child to risk situations.
  • The mother complained about the father’s parenting capacity saying that: he did not bath the child daily; he had cut the child’s hair short; he did not ensure the child completed homework; and he did not read to the child every night.  The judge found that these are not critical parenting tasks that are required for competent parenting capacity.
  • Neither parent took steps to encourage the child to maintain a meaningful relationship with the other parent.  The mother was unwilling to accept the child’s attachment to the father.
  • The child knew of the conflict between the parents, expressed views about living with each parent, and described some shortcomings of parents.  The child recognised the nature of the mother’s behaviour but was not overly affected by it.  The judge found that the child’s wishes should be given weight.  The judge found that the child was an adaptable child.
  • The judge found that both parents reached the standard of competent parent capacity, although both parents had shortcomings.

The judge ordered that the father have sole parental responsibility, that the child continue to live with the father, and that the child spend time with the mother.

The judge issued an order to restrain both parents from discussing any issue related to the Court proceedings within earshot of the child (restrain from discussing).