Herd & Herd 2015 FamCA 331

Parents disputed the living arrangement of a child aged 4 years with mild autism.  Both parents acknowledged that the child’s behaviour was at times trying.  The father reported that the mother frequently became angry over the child’s behaviour (which included hitting parents, pulling their hair and throwing things at the parents) and did smack the child but did not cause physical injury.   The father reported that he found injuries on the child when he was bathing her, of bruising behind both ears, bruising on both upper arms, and scratching.  The father took the child to a doctor and to police.  The child did not give consistent accounts of the injuries, but referred to falling off a skateboard.  The father gave inconsistent accounts to police and others.  Nonetheless the father considered it most likely that the mother had caused the injuries.

The mother denied causing the injuries and reported that she had now changed her methods of discipline.

The judge noted that when the child arrived at the father’s house the father’s new partner and her two children were in the house and they had an opportunity to interact with the child.  The judge noted an inconsistency between the father agreeing that the child live with the mother for substantial times, while also arguing that the child needed to be protected from the mother.

The father claimed that his calm parenting approach was preferable to the mother’s anxious, loud and confronting approach (parenting styles differ).

The consultant reported that the father made many criticisms of the mother over many topics including her approach to the child’s health and diet, not allowing the child to get sufficient sleep, for failing to satisfactorily develop the child’s language skills, for inappropriately seeking out medical advice and medication for the child, and for failing to obtain work or undertake further education for herself.

The father reported that he had been assaulted by the mother prior to their separation and the mother acknowledged one incident.  However the father did not proceed to argue that the child needed to be protected from exposure to family violence but instead submitted that the child live with the mother for substantial times (capacity to protect).

The judge ordered that the child live with the mother and spend substantial time with the father, with no orders for supervision.  The judge ordered equal shared parental responsibility as being in the best interests of the child.  Both parents were restrained from using corporal punishment with the child.