Leo & Hanson 2010 FamCA 321

A couple had a daughter aged 3 years at the time of the hearing.  The couple was involved in a car accident that severely injured the father, resulting in his being hospitalised for 7 months and becoming quadriplegic (parental disability).  The father returned to live with his parents.  The couple then separated and the mother took the child to live with her own mother.  The mother died tragically some months later.  The maternal grandmother then cared for the child.  The father then applied for sole parental responsibility for the child.

Evidence showed marked animosity between the two sides of the families, with reciprocal allegations made that were not substantiated in court, involving neglect, putting the child in harm’s way, and sexualised behaviour by the girl (mutual accusations).  Reports were made to child protection authorities but no evidence was provided to substantiate allegations (unsubstantiated allegation).

An expert gave evidence that the maternal grandmother experienced profound and prolonged grief at the loss of her daughter, and this led to a preoccupation that reduced her ability to attend to the emotional needs of the child as the grandmother looked backwards over time (differentiate own/others emotions).   There was no evidence that the child became emotionally distanced from the father as the child showed warm towards the father when the two were observed together.  However the child was reserved about showing affection to the father when in the presence of the maternal grandmother.  The grandmother intimated to the consultant that she wished that another man was the child’s father, but stated she had not expressed this view to the child regarding it as a personal issue of her own.  The consultant concluded that the grandmother  withheld emotional approval for the child to interact with her father.

The judge found that the grandmother had improved in her ability to distinguish her own feelings from the needs of the child in the nine months between the consultant assessment and the trial, and had recognised a need to change and to reconcile with the other side of the family (capacity to change).  The judge noted that the consultant was not provided with information that had emerged later.

The judge noted that the father had not facilitated visits between the child and aunts on the other side of the family during times when the child stayed with him.  The judge noted that the father lived with his parents and had not demonstrated an ability to rise above his own intense animosity towards the maternal grandmother, or to dissuade his parents from expressing their animosity towards the other grandmother (align).

The judge noted that current legislation does not grant a preferred role in child-rearing to a biological parent, and noted there is no mandate to include grandparents under the category of parents.

The judge ordered that the child reside with the maternal grandmother and spend substantial time with the father.  The judge ordered joint parental decision making responsibility between the father and maternal grandmother.