Capro and Capro

[2008] FamCA 669

FAMILY COURT OF AUSTRALIA

CAPRO & CAPRO [2008] FamCA 669

FAMILY LAW – CHILD ABUSE – Allegation – where Mother asserts Father physically abused her and both physically and sexually abused the child – whether in best interests of the child that time be spent with the Father – where allegations of abuse appear exaggerated – where allegations relate to abuse largely directed to Mother and not to child – whether supervised time spent appropriate in circumstances – supervised time spent allowed.

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – where communication breakdown between parents – whether presumption in the best interests of the child – presumption negatived.

APPLICANT: Mr Capro

RESPONDENT: Ms Capro

FILE NUMBER: BRF 1440 of 2006

DATE DELIVERED: 2 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 5 – 7 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: James Noble Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Carter Naughton Rice

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Selfridge of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Simonidis Shoebridge Lawyers

Orders

IT IS ORDERED:

1. That the child, … born … August 2000, live with the Mother.

2. That the Mother have sole parental responsibility for the major long term issues in relation to the child.

3. That the parties have responsibility for any short term decisions during the periods the child is in that parent’s care.

4. That the child spend time with the Father at all such times and subject to such conditions as the parties may agree in writing but failing agreement then as follows:

   (a)       For eight (8) hours from 9.00 am to 5.00 pm each week being either a Saturday or a Sunday at the election of the Father, but once the election is made save with the consent of the parties that day of the week is to remain fixed.

   (b)       For four (4) hours on Christmas Day, Father’s Day and the child’s birthday.  In the event the parties are unable to agree on the hours to be spent on such days it is to be between 3.30 pm and 7.30 pm.

5. All periods of time spent by the child with her Father are to be supervised by his sister Ms M Capro or her partner Mr T.

6. Changeover for time to be spent with the Father is to occur at such place and in such circumstances as the parties may mutually agree in writing and if unable to agree then as may be further determined by the Court.

7. The Father is to be at liberty to telephone the child on each Tuesday and Thursday between 6.00 pm and 7.00 pm.  The Mother is to make available a landline or mobile telephone number at which the Father can communicate with the child.  Save for an emergency the Father is not to telephone the Mother’s household outside of such hours.

8. Each party is authorised to contact any school, child care organisation, teacher, carer, medical practitioner, hospital or any sporting, cultural or religious organisation to provide to that parent any information that parent may reasonably request in relation to the child.

9. The Mother is to inform the Father in writing of any change of schooling for the child within seven (7) days of such change of schooling.

10. The Mother is to inform the Father in writing within seven (7) days of any medical or dental treatment the child may have or any period of hospitalisation.

11. Neither party shall denigrate the other in front of the child or allow such denigration to take place.

12. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS ORDERED BY CONSENT:

1. That changeover occur at the Y Police Station unless otherwise agreed in writing between the parties.

2. That, upon the provision of not less than three (3) weeks notice, the Mother be at liberty to suspend the Father’s visits provided for in these Orders on not more than six (6) occasions per calendar year. 

3. That the Father do ensure the child attends all musical and dance activities and lessons which are scheduled to occur on weekends when the child is in his care, subject to the supervisor being available to attend with the Father and the child.

4. That, within five (5) working days of any request from the Mother, the Father do sign any and all documents necessary to secure and renew a passport for the child and that, should the Father fail to do so a Registrar of the Family Court be authorised to sign all necessary documents to secure a valid passport for the child.

5. That, save by Order of the Court or with the written consent of both parties, the passport for the child be held in the custody of the Family Court at Brisbane and that the Mother ensure the passport is delivered to the Court within five (5) working days of its issue/use. 

6. That, in the event the Father attends any school function at which parents are ordinarily invited to attend, the Father shall not approach the Mother or otherwise attempt to communicate with her.

7. That, in the event the Father is unable to attend for a visit or if the supervisors are unavailable, the Father shall contact a representative at the Y Police Station and inform them of this as soon as practicable save that, if the Father is able to provide seven (7) days notice in writing of his or the supervisors inability to attend, he do so by providing appropriate correspondence to the Mother to be exchanged at the Y Police Station at the end of the visit.

NOTATION:

1. That any request for the release of the child’s passport be accompanied by a proposed itinerary, flight details and relevant addresses and contact telephone numbers.

2. That the Father shall spend time with the child on Sundays.

IT IS NOTED that publication of this judgment under the pseudonym Capro & Capro is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1440/2006

MR CAPRO

Applicant

And

MS CAPRO

Respondent

REASONS FOR JUDGMENT

1. “7.2.1My assessment of the situation suggests that although the Mother made the decision to leave the Father, she was hopeful that her actions in doing so would prompt changes in him which could then be followed by reconciliation.  The Mother’s negative opinion of the Father at the time of assessment would seem to have largely resulted from the Father’s perceived unwillingness to make the changes which she dictated would be necessary for her to resume her relationship with him.  The final straw was apparently her seeing him with another woman when she allowed him to spend time with [the child] for several hours in Brisbane city in May/June 2005.

   7.2.3The Mother claims to have acted out of parental responsibility in discouraging contact between [the child] and her father – because of his alleged addictions to alcohol and possibly other substances, domestic violence, inappropriate disciplinary techniques, tendency to drift from place to place and to rely on the generosity of friends for somewhere to stay, lack of stable employment, impecuniary, intensity, sexually driven approach to life, blurred sexual boundaries and lack of knowledge of or real interest in children – including his own.  The father denies that he represents a risk to [the child] in any way and specifically denies some of the Mother’s claims about his treatment of her and [the child].”

   (Refer report of Ms B on dated 16 November 2006 paragraphs 7.2.1 and 7.2.3).

BACKGROUND FACTS

1. The father is a 51 year old born in Africa.  His father was of European heritage and his mother from Africa. 

2. The Mother is a 41 year old born in Australia and has resided here at all times.

3. Both parties were previously married.  They met in about 1997.  The Father says cohabitation commenced in 1997 but that he was then absent doing work in Southern Africa throughout 1998/1999.

4. The Mother concedes that there was a relationship in about 1997/1998 but says she terminated the relationship in December 1998.  She says cohabitation resumed in February 1999.

5. Regardless of the above disputed dates it is common ground the parties married on 23 November 1999.  The child, a daughter, was born in August 2000.

6. The parties separated on 10 December 2004.

7. At the time of separation the parties were living in North Queensland.

8. The Mother left with the child and returned to Brisbane where her parents reside.  She stayed with them for about a month before moving out to independent rental accommodation.  She has subsequently purchased her own home in N, a Brisbane suburb where she resides with her daughter as the only other occupant of the house.  She is currently a teacher at S School in Brisbane.

9. The Father came to Brisbane in December 2004 shortly after separation and stayed until May of the next year.  The Mother says there were only two contact periods which occurred in February 2005.  The Mother says between April 2005 and December 2005 the Father only made four phone calls and sent three cards to his daughter.  The Mother concedes that she changed address towards the end of 2005 and did not inform the Father of the change of address.

10. The Father commenced litigation by filing an Application for Final Orders on 25 May 2006.  That Application was served the following day.

11. About a month after this time the maternal grandmother made a notification to the police that the child had made disclosures to her of sexual abuse.

    Note police entry 19 July 2006 - D Police Station (refer exhibit 4):

    “Informant has now been added as […] who is the complainant child’s maternal grandmother.  Informant [maternal grandmother] telephoned the reporting officer knowing that this officer is assisting the complainant child’s mother with a DV application.  Informant [maternal grandmother] advises that she would regularly care for the complainant child and observed that from the age of four (4) that the complainant child was masturbating excessively.  In addition, the complainant child was lying in bed with informant [maternal grandmother] on or about the morning of 5 July 2006 when she made the following unprompted comment, “Daddy has not been very nice to me and Mummy.  Daddy touched me on my private parts.”  Informant [maternal grandmother] replied, “No person has the right to do that.”  The complainant child further stated in the same conversation, “Daddy pulled my nipples and said he could do what he liked because he owned me.”

12. An entry for the following day 20 July 2006 indicates that the maternal grandmother telephoned the police to advise that the actual date of the conversation with the child was 30 June 2006 and not 5 July 2006 as originally stated.

13. I note the parties were interviewed by Ms B on five occasions namely, 3 October 2006 (Mother only), 5 October 2006 (Father), 9 October 2006 (Father), 23 October 2006 (Mother and child) and 24 October 2006 (Father and child).  

14. The dates of these interviews have some significance to which I shall advert later in these reasons when considering the various complaints made to the Department of Child Safety and the Police.

15. There was a later assessment carried out by Ms B on 6 February 2007 and 9 February 2007 in which she performed psychological testing of both parties.

16. The parties were interviewed by Dr L a psychiatrist in private practice in Brisbane.  The Mother was interviewed on 30 October 2006 and the Father on 6 November 2006.

17. Since March 2007 the Father has seen the child at the Logan West Contact Centre for two hours a fortnight.  According to the Contact Centre records (exhibit 6) during periods of time spent with the child a good relationship has been observed between Father and daughter.

ORDERS SOUGHT - FATHER

1. At the time he filed his Application on 25 May 2006 the Father was not legally represented.  This Application was in very basic terms:

   “1.      Phone contact.

   2.Physical contact.

   3.Visitation every second weekend and second school holiday.”

2. An Amended Application was filed by his current solicitors on 11 July 2006.  In that document the Father sought:

   ·that the child live week about with her parents;

   ·that there be an order for equal shared parental responsibility;

   ·various other orders for telephone contact while the child is residing in the other parent’s household.

The orders sought extended over fifteen paragraphs.

1. During the course of the interview with Ms B she recorded her understanding of what the Father was seeking was holiday and telephone contact only (refer 7.1.1 of the report of 16 November 2006).

2. In his outline of case document the Father sought orders that the child live with the Mother but spend time with the Father as agreed between the parties but failing agreement not less than:

   “a.Every alternate weekend from after school on Friday until 5.00 pm on Sunday.

   b. Half of  each gazetted school holiday period each year at Easter in June, September, December and January being the first half in even numbered years and the second half in odd numbered years.

   c.Telephone contact on any day of the week between 6.30 pm and 7.00 pm.”

   Various other orders were sought in relation to changeover and keeping the other parent informed.

3. The Father’s application for week about arrangements was never seriously pursued during the course of the hearing before me.  By his own admission his work commitments would militate against such a proposal.  Nor did the Father seriously pursue an order for equal shared parenting although there was some passing reference to this in the course of final submissions. 

4. In view of the complete breakdown of communication between the parties and the ongoing level of hostility which exists it would seem that any proposal for the parties to share joint responsibility for long term or short term decisions is unlikely to be successful or in the child’s interests.

5. In his outline of case document the Father, in the alternative, proposed that he have contact each alternate weekend and for half holidays but that such times are to be supervised by his sister, M Capro.

6. In the course of final address Counsel for the Father submitted if the Court was minded to find any risk to the child then the Father would support orders along the lines put forward by the Independent Children’s Lawyer in the course of his final address.

7. The Independent Children’s Lawyer had submitted that on balance the Court would find there was an unacceptable risk to the child from the litany of complaints about the Father’s behaviour and that the Court should order supervised contact for short periods – periods of three to six hours were suggested with such time to be supervised by an agreed supervisor or a Court appointed supervisor.

8. M Capro had given evidence in support of her brother’s case.  During the course of final submissions the Independent Children’s Lawyer indicated that she had been interviewed and he was satisfied she would act protectively towards the child.

ORDERS SOUGHT - MOTHER

1. In her response document filed on 15 June 2006 the Mother seeks the following orders:

   “1.That the child […] born […] August 2000 live with the mother.

   2.That the mother have sole parental responsibility for [the child].

   3.That there be no order for [the child] to spend time or otherwise communicate with the father save that in the event this Honourable Court is of the view that it is in [the child’s] best interests to spend time and/or communicate with the father that such visits and/or communications take place on a fully supervised basis at the Logan West Contact Centre and for not more than two (2) hours each alternate weekend.

   4.That the father pay the mother’s costs of and incidental to this application.

   5.Any other order this Honourable Court deems necessary.”

2. In the summary of argument document filed on behalf of the Mother on 11 January 2008 in paragraph 1 the Mother’s position is succinctly summarised as:

   “1.The respondent mother seeks orders for the subject child to live with her and have supervised visits with the father.”

3. In the course of final address Counsel for the Mother submitted that any time spent by the Father with his daughter should be supervised at the Logan West Contact Centre or in the alternative by someone approved by the Independent Children’s Lawyer.

4. The Mother was adamant that the Father’s sister, M Capro, was not an appropriate supervisor.

ISSUES FOR DETERMINATION

1. There was a wide divergence on the facts presented by the parties and their witnesses.  There is very little common ground to work on.  I would assess the major issues for determination to be as follows:

   (1)Should there be an order for sole parental responsibility as sought by the Mother or joint parental responsibility as sought by the Father?

   I have given an indication of my attitude on this aspect earlier in these reasons.

   (2)Should the Father spend overnight time with the child including school holiday periods?

   (3)      Should the Father’s time with the child be supervised?

   (4)If the Father’s time is to be supervised who is an appropriate supervisor?

2. I will consider other issues such as telephone contact, correspondence between father and daughter and what entitlement the Father should have to information from schools and medical centres later in these reasons.

WITNESSES

Father’s Case

1. Witnesses in the Father’s case were the Father himself; his sister, M Capro, who had sworn two affidavits filed on 31 July 2006 and 1 January 2008.  M’s partner Mr T also gave evidence in relation to being a potential supervisor of the Father’s time with the child.  Mr T had not provided an affidavit.

Mother’s Case

1. The Mother gave evidence and called as witnesses, her mother – the maternal grandmother and Mrs E Capro the former wife of the Applicant Father.

Independent Children’s Lawyer

1. Ms B, psychologist – two reports dated 16 November 2006 and 17 April 2007.  Dr L, psychiatrist, report dated 21 November 2006.

2. Counsel for the Independent’s Children had foreshadowed calling witnesses from the Police Department and the Department of Child Safety but ultimately they were not required.

3. All parties were represented by Counsel.  The matter proceeded over three days from 5 February to 7 February 2008.

EVIDENCE

Father’s Evidence

1. The Father says that after separation in December 2004 he moved to Brisbane where he remained from January 2005 until May 2005.  He says he was employed by the local Council for five months over this period.

2. The annexure to the Father’s affidavit does not quite corroborate his evidence but it does not appear that the Father’s claims in this regard are disputed. 

3. The Father says at paragraph 14 of his affidavit that contact ceased from the end of October 2005 until May 2006.  The evidence would indicate that there was no physical contact from May 2005 until March 2007 apart from the Father briefly seeing the child during the course of the interviews with Ms B.

4. In paragraph 15 the Father complains that the Mother has never advised him of where or when the child would commence kindergarten or school.

5. In paragraph 18 he deposes to the fact that he holds a Blue Suitability Card for youth related employment.

6. The Father currently works as a contractor driving delivery vans.  It is a position he has held since February 2007.  His hours of employment vary depending on the amount of deliveries to be distributed.

1. In paragraph 27 the Father says that he was the primary caregiver during the period of the marriage after the child was born and the Mother ceased breastfeeding. 

2. On 22 November 2006 consent orders were made for fortnightly time at the Logan West Contact Centre.  Contact did not actually commence until 3 March 2007. 

3. At paragraph 32 of his affidavit the Father sets out his version for the delay of over three months and annexes correspondence which in some measure supports his account of events.

4. In part the delay was caused by the Mother’s insistence that the Father not be permitted to bring a third party to the Centre.  Why this stance was taken by the Mother is not entirely clear.

5. On Sunday 22 April 2007 the Mother wrote personally to the Father’s solicitors with a copy to the Independent Children’s Lawyer in the following terms:

   “As indicated in our telephone conversation on Friday afternoon, I would like to offer [the father] the opportunity to visit with [the child] following school for afternoon visits on a regular basis whether after school care facilities or the premises of an extra curricula activity service provider can be utilised for a changeover, should his working hours allow for this - -

   [The child] has expressed an interest in a number of extra curricula activities, including basketball, tennis, drama club and hip hop/jazz dance.

   Perhaps [the father] would like to discuss this with [the child] and arrange a regular time to spend with [the child] in the pursuit of an interest they can share.  [The father] has told me that he played both sports to quite a high level.  If such an activity was timetabled on a Saturday, during the day, I would be happy to accommodate this as long as the pick up for [the child] was prior to 5.00 pm of a Saturday.  Any costs for such an activity would need to be covered by [the father].

   I would welcome a proposal from [the father] regarding such an activity, and will be happy to accommodate a time for [the father] to speak with [the child] by telephone to enable him to make arrangements for such an activity.”

   (Refer Annexure J to the Father’s affidavit filed 16 January 2008).

6. On 26 June 2007 the Mother once again wrote to the Father’s solicitor (refer to the final annexure to the Father’s affidavit) as follows:

   “I note callover for the above matter is listed on 19 July 2007.  As [the father’s] circumstances have changed since he lodged his Application would you please advise if he intends to pursue his Application or make any changes to the orders being sought.  Would you please update the information on the Application to reflect his current circumstances as outlined below.”

   Thereafter in this correspondence the Mother seeks information as to the Father’s hours of employment and whether they are outside of school hours and requests information to outline arrangements to accommodate transportation of the child to and from school and to and from her ballet lesson on a Friday afternoon.

   “3.dShould [the father] not be able to facilitate transport or care in person due to work commitments please outline the arrangements that would be put in place.  Please include a list of any other persons [the child] would be in the care of, in any such arrangements.”

7. The Mother wrote personally as her solicitors had filed a Notice of Ceasing to Act on 22 February 2007.  The Mother deposes in her affidavit that she remained unrepresented up until November of that year.

8. In explaining these letters in her affidavit the Mother says:

   “2.3.2In June 2007 I made a proposal to [the father’s] solicitors for him to spend time with [the child] at her school assembly and afterwards at a nearby park.  I had in mind that, had [the father] accepted that offer, I would have negotiated appropriate boundaries for the visit, including the time, the area of the park he could visit and who else was to be present.  [The father] did not accept this offer.  I was not legally represented at the time that I made this offer and, subsequently, the Independent Children’s Lawyer raised concerns in relation to that proposal.

   2.3.3I have reflected on that proposal in the course of preparing this my affidavit and, in hindsight, given [the father’s] ongoing erratic  behaviour in terms of visiting with [the child] I cannot be satisfied that [the father] is committed to ensuing that [the child’s] welfare is promoted during all visits with him.”

9. The filed documents would indicate that shortly prior to 22 April 2007 there had been a number of Court appearances, in particular 1 March 2007 (Registrar Dittman) and Registrar O’Reilly on 14 March 2007.  Whether the Mother was shown a video which is commonly shown to litigants, whether anything was said at the time, I am unable to say, but the offers she extended on 22 April and 26 June were not qualified in any way as she asserts in her affidavit.

10. I shall consider in further detail the Father’s time spent with the child when examining the subpoenaed material from the Logan West Contact Centre.

The Affidavit of the father’s sister

1. M Capro is the younger sister of the Father.  She is 48 years of age.  She lives in R with her partner, Mr T.  She conducts her own business and has done so for many years.  She additionally provides accommodation for two Asian students who are undertaking tertiary studies.

2. She is the mother of two children, S who is 24 years of age and G who is about 13 years of age.  G by her proud mother’s account is an outstanding straight A student who also excels at sport.

3. The affidavits filed by M Capro would have done nothing to lower the temperature of the heated emotional environment that existed between the parties. 

4. In her first affidavit the father’s sister is quite critical of the Mother’s behaviour over an incident about five years ago when she was teaching G the piano.  As there was no challenge throughout the course of the trial to the Mother being the resident parent the incident only has relevance in that it reflects on the Mother’s emotional stability which in turn reflects, to some measure, on the veracity of her evidence.

5. Much of the material raised by M Capro in her two affidavits could be deemed irrelevant and inflammatory. 

6. The second affidavit consists of a lengthy tirade against Mrs E Capro.

7. The dynamics in this relationship are somewhat complicated by the fact that the father’s sister was married to Mrs E Capro’s brother, a relationship which must have ceased some time at the latest in the mid-90’s.  At least since 1996 the father’s sister has been in a relationship with her present partner Mr T.  They work in their own business together from home.  M Capro and Mr T subsequently employed Mrs E Capro in their business but after a couple of years there was a falling out and Mrs E Capro’s services as an employee in the business were terminated.

Mother’s Witnesses

The Mother

1. The Mother has filed a lengthy affidavit in this matter extending to some 261 paragraphs.  In paragraph 12 the Mother says that she went to the D Police Station on 18 May 2006.  It may be that she had a brief interview on that date and was told by a police officer to return a week later.  The Police file indicates they first interviewed the Mother on 24 May 2006 – the day before the Father filed his Application.

2. In her statement to the Police she deposes to a telephone conversation with the Father on Wednesday 17 May 2006:

   “When he exploded in anger.”

3. The Mother prepared typed diary-form notes which are contained on the Police file.  They indicate that she telephoned the Father on 25 April 2006 to ask him to sign divorce papers and a passport application for his daughter. 

4. It appears the telephone conversation of 17 May 2006 related to a possible visit by the Father with his daughter.  It may be inferred the Father’s belief was that arrangements for time with his daughter were in place and the Mother in the course of this conversation cancelled such arrangements.

5. In paragraph 18 of her first affidavit the father’s sister deposed:

   “18.When [the father] returned to Brisbane in May 2006 I was witness to two telephone conversations that [the father] had with [the mother] which she instigated.  The first one, [the mother] wanted to find out whether [the father] would sign documents that would allow [the child’s] name to go on her passport.  I heard [the father] express his concern regarding the child leaving the country without his consent.  A few nights later, when I was driving with [the father] somewhere, [the mother] rang him on his mobile telephone.  It was clear that [the mother] had called to cancel plans between the two of them permitting [the father] to visit [the child] that weekend.  [The mother] was screaming so loudly I could hear her voice from where I was sitting in the driver’s seat.”

6. I am unable to say whether the second call is the same telephone call said by the Mother to be on the 17 May and said by father’s sister, “to be a few nights later”, after the phone call about the passport.  The Mother says this call was on the 25 April.  It may be that there was more than one telephone call in relation to each subject matter.

7. Whatever the plans were for the Father to see his daughter in May 2006 it is clear it led both parties to act - the Father to file his Application on 25 May 2006 and the Mother to make her complaint to the D Police on 24 May 2006.

8. In paragraph 16 of her affidavit the Mother deposes:

   “16.A temporary protection order was made by the Richlands Magistrates Court on 27 June 2006.  [The child] was a named person on that Protection Order.”

9. Considering the fact separation was in December 2004 and the Father had resided in Brisbane from January 2005 until May 2005 it is somewhat surprising the Mother should feel the need to obtain a temporary Protection Order in May 2006.  It may be she felt intimidated by the Father’s behaviour in the course of the telephone calls earlier that month.  If the evidence of the father’s sister (as quoted above) is to be accepted then any screaming on the telephone was not limited to the Father’s part.  I am inclined to accept Ms M Capro’s evidence on this aspect sworn as it was in July 2006.

10. On balance I am inclined to accept the Father’s account that there was an arrangement for him to see the child and after telephone discussions where the Father was not acceding to the Mother’s request in relation to the passport the Mother subsequently cancelled such arrangements.

11. The Mother’s complaints about the Father’s behaviour are numerous, although many are not relevant to the issue of whether the Father should have the opportunity to have a relationship with his daughter.

12. The Mother’s complaints include:

    (1)The Father did not support her and the child financially throughout the relationship.  Presumably this was the case in the period February 1999 to December 1999 yet she still agreed to marry him at the later date.

    (2)The Father drank alcohol and smoked cannabis daily.  This is certainly relevant to the Father’s ability to parent.

    (3)The Father isolated her from her family. I note the maternal grandmother’s evidence she spoke to her daughter when she was in North Queensland by telephone on a weekly basis and at times when her daughter was stressed up to three times a week. 

    (4)The parties certainly changed addresses on a regular basis during the course of the five year relationship.  I would assess the major reason for changing address was endeavouring to seek appropriate employment.

    (5)The Father refused to care for the child whilst she undertook employment and refused to care for the child generally.

    (6)The Father refused to assist in household chores.

    (7)(Refer paragraph 69) The Father refused to allow the child to be taken to the hospital when she sustained a deep cut to the head when she was one year old.

    (8)The Father refused to allow the child to drink milk claiming it was mucus forming.

    (9)The Father had a quick temper which he displayed by shouting at the child.

    (10)(Refer paragraph 72).  The Father would call her “Whingyanna” if she was crying.

    (11)(Refer paragraph 85).  She infers he stole her handbag.

    (12)(Refer paragraph 88).  The Father was abusive to her describing what she had done as, “diabolical and abominable”.

    (13)(Refer paragraph 96).  During their relationship he was extremely controlling.

    (14)(Refer paragraph 99).  The Father was critical of members of her family.

    (15)The Father was frequently critical of her.

    (16)(Refer paragraph 110).  The Father was a religious bigot and his thinking was often tangential or strange.

    (17)The Father’s controlling behaviour and her isolation from her family was such she was unable to attend her brother’s wedding and the wedding of a good friend.

    (18)(Refer paragraph 125).  The Father made threats of violence, “Shall I beat you now”.

    (19)The Father inflicted pain on her in various ways described in paragraph 130 and other paragraphs.

    (20)The Father engaged in sexual conduct with her with which she did not agree (refer paragraphs 132, 133, 134 and 135).

    (21)(Refer paragraph 140).  When the child was almost two years of age she was changing the child’s nappy and he sniffed the air and said, “Everything’s working you are going to have to change her from now on the smell of her gets me too excited”.  Dr L interprets this event as being a reference to excreta (refer final paragraph of page 6 of his report).  No context was given to this isolated statement made by the Father when his daughter was one year old.  Was he smelling the child’s urine?  Was he smelling the child’s excreta?  Was he smelling baby powder?  Was it said jokingly, sarcastically, critically or in some other fashion?  At the very least an inference can be drawn from the Father’s statements that in the past he had certainly changed the baby’s nappy.  In a situation where both the Department of Child Safety and the Police have separately investigated the Mother’s complaints and found the Mother’s claims of sexual abuse unsubstantiated it is not the sort of statement which would lead a Court to limit a Father’s contact with his daughter.

    (22)(Refer paragraph 141). In 2004 he wore his underpants around the house and masturbated in front of the child and herself. 

    (23)(Refer paragraph 142). He tweaked the child’s nipples and started biting her arms.

    (24)(Refer paragraph 143).  On one occasion I saw (him) pull the front of (her) labia.

    (25)(Refer paragraph 144).  He would remain undressed all day and belt both the child and I with a wooden spoon.

    (26)(Refer paragraph 145).  The child made disclosures to her school teacher on 22 November 2006 that she did not feel safe when she lived with her father and that he, “Always used to touch my privates.”  There was no evidence from the teacher called at the hearing.  There is no evidence in the school file which was subpoenaed (exhibit 3).  The alleged claim by the child to the teacher does not accord with the Mother’s own evidence that she witnessed him on one occasion pull the front of the child’s labia.

    (27)(Refer 146).  He would threaten the child, “Eat or I will beat you.”  “I have seen him hit her up to six times with a wooden spoon if she did not obey him instantly.”

13. In the period post-separation I detect a degree of ambivalence in the Mother’s attitude as to whether the separation was final.

14. The parties had separated in 1998 and reconciled a few months later.  In paragraph 151 of her affidavit the Mother deposes as follows:

    “151.In December 2004 I found the courage to leave [the father].  I left the house with [the child] when [the father] was there and moved to Brisbane.  [The father] refused to move although I had told him two weeks earlier of my plans.  He was aware I was leaving and made no attempt to stop or follow me.”

    It is a little bit difficult to know what to make of this sworn evidence by the Mother.  Was she expecting him to follow her and the child to Brisbane?  Was she expecting him to stop her departure?  Was she expecting him to vacate the house and leave her in possession? – this possibility is remote as clearly she intended to go to Brisbane and live with her parents.

Incident at shopping centre on 6 March 2005

1. (Refer paragraph 159 to 164).  After a telephone call made by the Father on 6 March 2005 they went together to a large shopping centre on the outskirts of Brisbane.  They had a cup of coffee together.  The Mother’s evidence is that thereafter he assaulted her, masturbated and then wiped semen on her face.  She reports he said to her after he had ejaculated, “See what you do to me.  Isn’t this wonderful.”  In subsequent telephone calls he (once again) asked her to go out with him.  When she declined he said, “But things were going so well.  Didn’t we have a lovely time together last Sunday.”

2. I am unable to assess from the Mother’s account whether the Father was being sincere in his statements, sarcastic, mocking, controlling or simply naïve.  It may be deep underlying cultural differences could account for their different take on the incident that occurred.

3. The Mother made it appear to be a degrading assault in a public place such as a Brisbane shopping centre.  The more likely version is the Father was sexually aroused and to a limited extent she acquiesced when he grabbed her and hugged her – “I just stood in the hall and waited for him to let me go.  I was frightened that he might make a scene and so thought it best to quietly wait until I could get away.”

4. I find it difficult to accept she could not have called out and with the number of people presumably in the near vicinity he would have desisted.  It does not explain why she could not have enlisted support of other women whilst visiting the restroom.

5. I have a degree of difficulty in accepting the Mother as a credible witness particularly in relation to the complaints lodged with the Queensland Police and the Department of Child Safety.  There is an air of hyperbole about her version of events.  At 3.3 of Ms B’s report when commenting on the Mother’s psychological profile she noted:

   “3.3The profile is also consistent with [the mother] … herself demonstrating occasional aggressive overreaction to minimal provocation.”

   I am of the view the Mother’s behaviour reflect this assessment.

Affidavit of Maternal Grandmother

1. I find much of the evidence set out in this affidavit to be of limited relevance.  At paragraph 25 of her affidavit she deposes:

   “25.In July 2006 [the child] had been staying with me for a weekend.  She was just five, just about to turn six.  [The child] always came into bed with me at 5.00 am before we got up and we would have a bit of a chat.  She was very serious this morning and she said, “You know Nanny, my Daddy touched me in my private parts and pulled my nipples.”  I got a bit of a shock when she said that as I was not expecting her to say anything like that.  I told her that nobody had the right to touch her private parts.  I told her that she was a special girl.  I then rang the Police and made a statement.”

2. In the Police file entry for 19 July 2006 the witness had told the Police that from age four the child was masturbating excessively. Why she does not record this important piece of evidence in her affidavit was never made clear.  No such observation is recorded in the evidence of the Mother or the maternal grandmother.  I find it an astonishing coincidence that the Mother should be served with Court process on 26 May 2006 and just over a month later the child is making disclosures of sexual abuse in the terms stated to the maternal grandmother.  At this point in time the child had not seen her father for some fifteen months and even then it was supervised by the Mother.  The previous time the child could have been alone with her father was December 2004 when she was four years old.  I am sceptical of a situation where a child is making disclosures of sexual misconduct at least eighteen months after the event having said nothing in the intervening period.  I am even more sceptical when this disclosure is made a little over a month after the Father had instituted Court proceedings.  I note the first return date of the Father’s application was 27 June.

1. Where the child made the statement on 30 June I find it difficult to understand why a complaint was not made to the Police until the 19 July 2006 (as appears from Police records).  I will discuss the witness’s evidence in more detail when considering as a separate issue the allegation the child has been sexually abused by her Father.

2. I found the maternal grandmother a very anxious woman.  I accept she has a close relationship with her daughter and is very protective of her.  My main qualification as to her evidence is that I expect she is so anxious to support her daughter that she would be prepared to embellish her evidence or say almost anything which she deemed would assist the Respondent’s case.

Mrs E Capro

1. This witness was previously married to the Father.  They commenced cohabitation in about 1978.  She makes allegations against the Father in similar terms to those made by the Mother, in particular, referring to his controlling, domineering and at times violent behaviour.  I am not minded to accept the evidence deposed to by this witness in paragraphs 28, 29 and 30 (evidence of the Father having an erection whilst photographed at a beach on the Sunshine Coast).  Even if I was accepting of the evidence the weight to be attached to it in the absence of further investigation would be minimal.

2. It is clear that from statements in the Police file that Mrs E Capro had spoken to the Mother on a very regular basis and they had compared notes in considerable detail.  I find it is likely that these conversations have embellished their accounts of events.  This witness had reason to be bitter with the Capro family.  Her marriage to the applicant had failed as had her brother’s marriage to the father’s sister M Capro.  She had been dismissed by the father’s sister in acrimonious circumstances. It may well be the Father acted in a boorish controlling manner as a husband. He can justifiably be criticised for not supporting his two children financially.  Notwithstanding her many criticisms of the applicant she allowed him to have unsupervised time with their son O after separation (refer paragraphs 20, 21 and 24).  If the applicant’s conduct was so appalling I find it difficult to understand why she would send her son as a nine year old to his father in Queensland for a week in about 1993 when they had separated in 1985.

Sexual Abuse Allegations

1. The Mother saw Ms B on 3 October.  Whether she knew the Father was to see the child on 4 October I am unable to say.

2. On 4 October the Mother attended at the Police Station.  Handwritten notes which constitute the last page of the Police file seemingly record an interview with the child on that date in the following terms:

   “Dad doesn’t live with me.

   -    Touching private parts.

   -    Mean to Mum.

   -    Smoking/drinking.

   -    Touching private parts – born in Africa.  All the people do that there – touched it when I was three – touched it when I was one – Mum thought he was nice.

   -    When was three – go in bath and shower with me.

   -    Went in toilet with me looked at my poo.

   -    Touched private parts bottoms and something.

   -    Shower touched nipples and pinched them – bleeding when pull them 20 times Mum told me about him.  Mum told me that he had touched my private parts.  Mummy said bottom Mummy told me yesterday.”

3. There is one entry which would indicate that some of the notes were made on 4 September.

4. I am satisfied that this is an error and that all of the other entries reveal the correct date of the attendance as 4 October. 

5. The typed entry under the heading “Child Abuse Investigation” is in the following terms:

   “Conducted 93A interview with subject child regarding alleged sexual abuse.  During interview the child started to make disclosures outlining that her father the suspect in this matter had touched her private parts which the child clarified as her bottom.  During further clarification the child stated she remember (sic) two times when he did this and that she remembered this times (sic) because her mother had told her about them yesterday. Further clarification could not determine independent recollection of events from child.  There is no evidence to suggest offence has happened and as such this matter has been non-substantiated.  With no further investigation to be conducted.”

6. I am quite satisfied that the Mother has blatantly spoken to the child telling the child quite inappropriately matters she alleges about the Father’s treatment of her.  She did this in the context where it was likely she knew that the child would be interviewed jointly with her father in the near future by Ms B.  The Mother’s own evidence does not correspond with what the child was saying.  She saw the Father touch his daughter on the labia on one occasion.  It seems highly probable what the child was telling the Police officer was what the Mother had told her daughter the previous day.  It is absurd to think the child could purport to recount events that are said to have occurred when she was a one year old.

7. In a letter of 18 April 2007 to the Mother from the Department of Child Safety the Mother was informed following the investigation the assessment outcome was recorded as:

   “Unsubstantiated – child not in need of protection.”  The reasons for this outcome are as follows:

   ·    Unsubstantiated harm by [the father] as a result of no evidence to suggest that harm has occurred as a result of these allegations.

   ·    Evidence found during the Departmental investigation suggested that [the child] had no recollection of the alleged incidences regarding her father.

   ·    There was no evidence to suggest that [the father] had exposed or subjected [the child] to any harm of sexual or physical harm.”

8. I note the Mother’s letter to the Father (refer paragraph 50 above) was written on Sunday 22 April presumably after she received this correspondence from the Department.

9. On page 2 of the letter the Department notes:

   “This assessment recorded an additional outcome of “substantiated – child at risk of emotional harm for [the child] by [the mother]”.  The reasons for this outcome are as follows:

   ·    Evidence found in the Departmental investigation suggested that [the mother] had exposed [the child] to graphic information regarding the alleged sexual abuse that she had alleged being the subject to (sic) as a younger child.

   ·    Emotionally [the mother] has placed [the child] at future emotional risk due to the nature and future impact this information and knowledge will have on her social and relationship development.”

Investigation of Complaint made 23 October 2006, 12.08 pm

1. The evidence does not make clear at what time on the 24 October 2006 Ms B made observations of the child interacting with her father.

2. At paragraph 4.5.3 of her report Ms B observes:

   “4.5.3At the conclusion of my individual interview with [the child] on the 23 October 2006 I told the mother that I would be asking to see [the child] with her father (when I talked with the mother about this earlier she said she would probably have her brother bring [the child] in to see her father).  The mother seemed accepting of arrangements for this to occur the following day but when I went in with another client she reportedly told my assistant, [Ms BO], that [the child] was, “no longer comfortable” about being seen with her father.  I instructed Ms [BO] to tell her that it was my view that this session was needed to complete the assessment and that I did not feel [the child] had any real objections.  The mother appeared to accept this and left but returned soon after and told Ms [BO] that [the child] was “now prepared to say she does not want to see her father”.  According to Ms [BO], [the child] did not seem very definite about this and just said, “I don’t want to come tomorrow” not “I don’t want to see Dad”.  This scenario was consistent with the mother having discouraged [the child] from seeing her father.”

3. In the light of a total examination of the Mother’s behaviour during the whole period of this litigation I have no hesitation in accepting the accuracy of the observation made by Ms B.  It really doesn’t matter whether it was before or after this interview that the Mother took the child to the Department of Child Safety for the purpose of making the complaint.

4. In paragraph 6.3.1 and following Ms B details the observed relationship with the Father.  The observations of the meeting were essentially positive for example paragraph 6.3.20:

   “6.3.20[The child] called her father “Poppy” but spontaneously corrected herself.  She intended to call him Dad or Daddy.  She was obviously comfortable to be hugged by her father.  After she pleaded with him, “squeeze me”, he gave her a big bear hug.  She was delighted and squealed.  Clearly she was accustomed to a close relationship with her father.

   6.3.21After the father had left, without stopping to think, [the child] told me it had been good to see her father and that she would like to see him again.  However she quickly said jokingly, “No ‘cause he kisses me too much”. When questioned about this she said that she didn’t like him kissing her as he, “picks his lips and his lips bleeds and I don’t want to catch his blood germs.”  She added that her mother had told her to, “be careful about that”.  She said she didn’t tell her to be careful about anything else just that.”

Incident on 17 March 2007 at Logan West Contact Centre

1. The Father had commenced contact on 3 March 2007 for two hours.  A fortnight later he was due to see his daughter again.  It is recorded in the Logan West file that the Father asked for a private conversation with the supervisor away from the child.  He told the supervisor that the child was not wearing underwear which he observed when he was sitting on the floor.  After the Father had reported that the child was not wearing any underwear the Co-ordinator spoke to the child in private and she said that she had gone swimming before the visit and her underwear had got wet.  She said she had told her mother and her mother had told her she would just have to go like that.  There were no spare clothes for the child and the visit was continued with the supervisor ensuring the child did not position herself so she would be exposed.  The file notes continue that when the Co-ordinator spoke to the Mother after the visit she said she did not know about the underwear.  The Co-ordinator then asked the child again in private if she had told her mother and she said, “yes.”

2. I find it extraordinary that in the circumstances of this case the Mother would send the child out to a visit with her father wearing a skirt and no underwear.  What is even more alarming is that on 19 October 2007 a complaint was made to the N Branch of the Department of Child Safety.  Notifier’s concerns were as follows:

   “Notifier states that S/C [the child] had contacted the father at Logan West Contact Service on the weekend of 16/17 March 2007.

   Notifier states that [the child] came to this visit wearing a dress down to her knees with her no underpants on.

   Notifier states that the supervisor (presumably at the Contact Centre) had knowledge that [the child] did not have underpants on and allowed the visit to go ahead for the full allocated time of the contact.

   Notifier believes that, “There is reason to believe that the child has had sexual assault in the past.”

   Notifier also has concerns that the Contact Centre ([Logan West].) is still operating (and that other children are possibly not being supervised adequately).”

   The Mother lives in N and the complaint was made to the local office of the Department of Child Safety.

3. I find it most likely that the Notifier in this instance was the Mother.  In the alternative it is likely to be the maternal grandmother.

4. I find it most likely that the child’s version was correct.  She had been swimming, her underwear had become wet and the Mother sent her off to the Contact Centre without any underwear.  The Contact Centre records confirm the Mother advising them on that day the child had been swimming at her cousin’s place.  Even if this version not be accurate, I find it astonishing that the Mother would not supervise what clothing the child was wearing for a Contact Centre visit.  I find it even more extraordinary that when the Contact Centre had raised the incident with the Mother at that time that some six months later when the matter was approaching trial in November 2007 a further complaint should be made to the Department of Child Safety.

5. The evidence of the Mother is that on one occasion the Father pulled the child’s labia and on another occasion he made a reference to the child’s smell.  Neither of these incidents are of any concern such that they would lead to a positive finding that the Father has sexually abused his daughter.  Both incidents occurred openly in the presence of the Mother.

6. I am not inclined to accept the claims by the Mother that the Father masturbated openly in the presence of the child and herself.  At its highest her claims probably amount to the fact that he did walk around his home with only underwear on.  He may have adjusted himself as he sat down.  The obvious question never asked was - if the Father was openly masturbating in the presence of the child why didn’t the Mother simply pick the child up and take the child into another room.

7. Because of the nature of the allegations and the extent of the allegations I have scrutinised this evidence very closely indeed.  I am far from satisfied as to the legitimacy of the Mother’s behaviour in trying to pursue allegations that the Father has sexually abused his daughter.  I am more than satisfied the child is at no risk of sexual abuse by her father.

Father’s Credibility

1. The Father presents in a very laid back, “cool”, somewhat arrogant manner.  On balance I am inclined to accept from the Mother’s evidence that she was the primary caregiver though there are indications the Father assisted a good deal more than the Mother was prepared to give him credit for.  Evidence to support this includes the observations made by Ms B of the particularly enthusiastic way in which the child greeted her father at the time of the joint interview.  At paragraph 6.3.20 of her first report Ms B notes:

   “She (the child) was accustomed to a close relationship with her father.”

2. A number of criticisms can be levelled at the Father.  He has not supported his son O or daughter (the subject child) financially at any time since separation from the respective children.  I expect he has a relatively high alcohol intake.  His answers in the course of cross examination were inconsistent in this regard.  There are indications that the Father faked a urine analysis drug test on 18 April last year.  It is likely that the Father has partaken of cannabis on a regular basis.  By the same token he has held down a job as a delivery contractor driving a vehicle for a period of sixteen months.  It is unlikely he could be doing this if he was consuming alcohol or drugs during the course of the day.  He does not give any physical indication of a person who has had a high level of cannabis intake such that they develop a permanently stoned manner.  He presents in an alert, intelligent manner.

3. The chief attribute the Father can offer his daughter is a highly imaginative and creative sense.  He has also much to offer in a cultural sense.  He would be able to assist his daughter with a particular focus on the area of music at which he excels.  The Mother herself teaches music and is obviously able to impart her knowledge also to her daughter.  The Father has had to put up with the stigma of being labelled a sexual abuser of his daughter.  I am more than satisfied that the allegations made against him are simply outrageous and the likelihood is they are deliberately so.  The Mother has much to answer for in her conduct as revealed in the files of the Queensland Police and Department of Child Safety.  Similar comments apply in relation to her mother.

Evidence of Mr T

1. Mr T is the partner of the father’s sister, M Capro.  He was an impressive witness.  I find it highly unlikely that he would burn his son with a cigarette as alleged against him by Mrs E Capro.  If ever there was such an incident I could only conjecture that it was an accidental brushing with a cigarette which typically has been blown out of proportion by Mrs E Capro.  Mr T successfully operates his own business with the father’s sister and has done so for many years.  They have the responsibility of having student boarders with them and they are raising their own daughter G.  They reveal themselves as caring dedicated parents.

Professional Witnesses

Ms B

1. Ms B provided her usual thorough report.  I have no difficulty accepting her observations as recorded in the two reports annexed to affidavits filed on 6 December 2006 and 24 April 2007.  In paragraph 4.4 of her second report under the heading “Summary and Opinion” Ms B observes:

   “4.4It is my opinion that there still needs to be a thorough hearing of the evidence – particularly in relation to the Mother’s claims about the Father’s alleged violence, alcoholic tendencies and over discipline of [the child] – before the Father is permitted to spend any time unsupervised with [the child].”

2. In the course of her oral evidence she repeated the obvious namely if there was a finding of some risk to the child then any time spent by the Father with his daughter should be supervised.

Ms B’s Observations of Mother

1. At paragraph 4.5.1 and 4.5.2 of her first report Ms B notes:

   “4.5.1During most of my interview with [the mother], her presentation was extremely intense and she clearly found it assisted her concentration to talk to me with her eyes closed.  Admittedly, I was not maintaining the best possible eye contact as I was typing as we talked and had apologised to her for this, but her total retreat into an internal world was obvious as she talked at length about her life and experiences – particularly those with her mother and [the father] – needing only minimal prompts from me.  Her manner of dealing with the interview was noteworthy because it was idiosyncratic and at odds with what usually happens in similar circumstances in my experience.  At times she closed her eyes even when facing directly towards me when I was not typing.

   4.5.2[The mother] presented as intelligent and articulate.  She had clearly thought a lot about her history and agonized over making sense of her life.  She indicated she had started to feel free and to enjoy other people and their children in a way she had not been able to do when with [the father].  She was clearly resistant to the father(s) having a continuing role in their daughter’s life.”

2. At paragraph 8.1.3 of the same report Ms B notes about the Mother:

   “8.1.3Although she ostensibly had a supportive family background, she apparently struggled as a child and adolescent because of a toxic relationship with her mother who suffered with undiagnosed and untreated mental health issues.  The mother, herself, has had problems with depression over the years and reports going on a painful voyage of self-discovery to recover from the emotional traumas of her early years.  She has reconciled with her family since returning to Brisbane and [the child] is now very involved with the maternal extended family.  The mother’s presentation at interview was decidedly odd – intense in the extreme, as demonstrated by the way she closed her eyes tightly and excluded all external stimuli in order to concentrate totally on her account to me.  She appears to be a responsible parent and has [the child’s] trust.  There is some evidence, however, that she has presented [the child] with a negative view of her father – however subtly this might have been done.”

   In my view it has not been done very subtly at all.

3. The Father is somewhat more gracious than the Mother when asked to make comments about the other parent.  The Mother was clearly unable to make any positive comment about the Father.  At paragraph 5.1.3 Ms B reports the Father as saying:

   “In every other respect the mother was “fine” – as a mother and as a musician.  She was a very gifted woman and there is no doubt about that.”

1. At 7.4.1 of her first report under the heading “Impact of Proposed Changes on Child” the report writer notes:

   “7.4.1Provided the father does not represent a risk of physical or sexual abuse to [the child], it is likely that spending some time with him during her school holidays and speaking to him regularly on the telephone will overall be a positive influence on her development.  However, both parents would need to refrain from making even subtly negative comments about the other to her or she would be at risk of stress overload and emotional damage.  At the moment, although it is not ideal that she is effectively cut off from her father, she at least does not have to deal with the confusion and tension engendered by differing opinions about what is best for her or the sniping of one parent at the other through her.”

2. In the second report Ms B was focused on an assessment of the parties’ personality profile using the Minnesota Multiphasic Personality Inventory – MMPI-2.  At paragraph 2.2 she assess the results of the Father as:

   “All other clinical scales are within normal limits, this being consistent with the profiles of people who demonstrate no depressive illness or anxiety disorder.  It is possible that [the father] suffers some paranoid personality tendances, although in the context of a bitterly fought Family Law litigation it is also possible that his fears are – at least to some extent – realistically based.”

3. At paragraph 3.6 the comments in relation to the Mother are in the following terms:

   “Overall, [the mother’s results in the MMPI-2 suggests that she has a normal, well integrated personality and at the time of assessment suffered no mental disorder of any kind.  The defensiveness indicated in the validity scales is insufficient to invalidate the clinical profiles. [The mother] apparently does have a personality which is somewhat repressed and introverted and also tends to suppress negative emotion, with the likely consequence that she is vulnerable at times to overreaction to minimal provocation.”

4. This accords with my own observations of the Mother as someone who is hype-sensitive and quick to take offence.  She has ruminated on the behaviour of the Husband towards her during the marriage and has translated that to represent that her daughter would be subjected to what she perceives to be his insensitive manner.  She complains that the Father used to refer to the child as “Whingyanna” if the child was crying.  I see nothing inappropriate about that.  I suspect similar comments are made in most households.  In relation to the Father’s consumption of alcohol it is possible that he has minimised his intake but I will make further observations on that later in these reasons.

Dr L’s Report

1. Dr L is a psychiatrist in private practice in Brisbane.  His report is dated 21 November 2006.  At page 3 he records the Mother as saying:

   “My parents were right.  He is an alcoholic bum, he has never had a job, he doesn’t work.”

2. At page 5 he records:

   “The Mother has a past history of depression.  The family history indicates a genetic vulnerability to depression which is inherited.”

3. At page 8 under the heading “Summary” he notes:

   “The parent’s relationship history to date supports the probability that they will struggle in the future to relate with each other in a stable, mature, respectful, understanding manner.”

4. He records that the Mother is currently continuing to take an anti-depressant Paraxotene.

5. At pages 14 and 16 of his report Dr L summarises the “Mental State Examination” of each party.  There is nothing adverse indicated in relation to either parent.

Contact Centre Records (Exhibit 6)

1. I have previously commented on the incident at the Contact Centre on 17 March when the child presented with no underwear.  I found it interesting to read of the Mother’s overreaction on that occasion.  If anyone was to blame for the child attending in that condition it was clearly the Mother yet the Mother was so distraught she was unable to drive and had to be settled by staff at the Contact Centre before departing.  The next visit was scheduled for 31 March and the Mother cancelled that visit on 27 March at 9.00 am because:

   “The child has a sleepover event that day.”

   I find such conduct on the part of the Mother to be totally unacceptable.  A Court order is a Court order.  The Court order provided for two hours per fortnight for the Father to see his daughter.  For the Mother to give greater priority to a sleepover arrangement than for the child to see her father is to my mind a blatant contravention of an order of the Court as well as telling evidence the Mother places no value on the child’s relationship with her Father.

2. Reports of other visits over an extended period of time reveal a warm interaction between the child and her father.  The Father brings gifts and is obviously well prepared for the visits.  At the contact on 14 April it was discovered that the child had head lice and the visit was forthwith terminated.  It has to be seen as a poor reflection on the Mother’s parenting that she would present a child at a Contact Centre with head lice.  I am not blaming her for the fact the child had the head lice – it can be easily contracted in a school environment but knowing the child was attending on a weekend at a Contact Centre such matters should have been evident to her.  To her credit the Mother did accede to a visit occurring the following day.  The records reveal the Father’s frustration at this turn of events that his time on 14 April had to be cancelled but he was in large measure able to suppress his feelings in front of the child.  The visit on 12 May was cancelled because the Father was unable to pay his fees.

3. The records reveal that on 22 September the Mother phoned the Contact Centre. The record of the conversation which I find to be accurate is illuminating of the Mother’s attitude generally. 

   “Phone call to [the mother] – we confirm next weekend’s visit and also discussed possibility of moving to the group supervision.  [The mother] expressed reservations about this.  She said that they are going to Court on 09/11/07.  [The mother] said that she did not believe that [the father] should be around other children in the group situation as she believed that [the father] would molest children given the opportunity.  She said that that was why she continued to want [the child] to be supervised when she was around [the father] – she believed that one day, if the situation arose where he was able, he would molest [the child].”

   The Mother has obviously had no regard whatsoever to the fact the Queensland Police and the Department of Child Safety had both found such allegation unsubstantiated.

Section 60CC Factors

1. I propose to make orders allowing the Father to see his daughter on a regular basis with such time to be supervised by his sister M Capro or her partner Mr T.  My reasons for so ordering will be summarised after consideration of the individual factors pursuant to Section 60CC.

Primary Considerations

1. The primary considerations are:

   (a)the benefits of the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. I find there would be considerable benefit to the child in having a meaningful relationship with both parents.  Thankfully the evidence would indicate the child still has a positive relationship with her father.  It is a concern to me that there is a risk in the household of either parent that there could be denigration of the absent parent. 

3. It is difficult to conceive of any form of denigration greater than suggesting to a child that the other parent has been sexually abusive towards her.  The Mother has done this on multiple occasions to Police, Department of Child Safety and to the Contact Centre. 

4. I have a concern the Father and any family member supervising his time may allow the child to witness denigration of the Mother whether covert or overt.  However on balance I have formed the view that the father’s sister and her partner would appreciate and respect the child’s position not to have her mother denigrated and would ensure that the Father does not do so during times he spends with the child.  It is to be hoped that the Mother would appreciate the destructive force of such statements if she continues to denigrate the Father to the child.

5. Most of the Mother’s complaints about the Applicant reflect his treatment of her rather than his treatment of the child (refer paragraph 74 hereof):

   ·The Mother’s complaints include not supporting her financially during the relationship or post-separation.  This may be so and may reflect poorly on the Father but it does not mean to say that he poses a risk to the child.

   ·The fact that he did not help with the housework.  Again this may be so, he may be of a lazy disposition but it does not mean to say the child should lose the benefit of having a relationship with her Father.

   ·The fact that he engaged in sexual conduct with the Mother which she did not find acceptable.  It would be dangerous territory indeed for the Court to trespass in this area to find that because the Father engaged in sexual practices with the Mother that such practices would preclude him from developing a future relationship with the child. 

   ·The Father refused to care for the child whilst she undertook employment and refused to care for the child generally.  The Mother’s assertions in this regard are questionable. 

   ·The Father refused to allow the child to drink milk claiming it was mucus forming. Once again the Father reflects a view common in alternative medicine circles and even in certain mainstream medical circles. It is certainly not a matter that would preclude the Father spending time with his daughter. 

   ·The Father was critical of members of her family.  One is entitled to ask the rhetorical question, so what?

6. Of concern in the allegations made by the Mother in paragraph 74 and in her material generally would be the claims of heavy physical discipline of the child, subjecting the child to angry outbursts, consuming alcohol or taking drugs whilst the child was in his care, engaging in conduct such as tweaking the child’s nipples and parading around in his underpants.

7. I have already made findings in relation to the allegations of sexual abuse.  I detect an air of hyperbole in the depth and breadth of the Mother’s complaints.  The Father may have disciplined the child more firmly than she did.  He may have used a wooden spoon but there is no evidence the child was bruised or suffered harm.  Given the Father’s time will be limited to one day per week in daylight hours and be supervised by a family member it is highly unlikely the child would be subjected to any physical harm. Similar comments could be made about the child being subjected to angry outbursts. I gained the impression the Father is very much looking forward to indulging his daughter as he regularly brings gifts to the Contact Centre.  I have no doubt that the Father and his sister would engage in imaginative outings with the child within the South East Queensland area.

8. In short I am not satisfied that any time spent by the child with her Father would lead to any physical or psychological harm to the child particularly where such time is to be supervised by a responsible family member.

9. If the Mother continues to suggest to the child the Father has been sexually abusive to her this would almost certainly amount to abusive conduct.

Additional Considerations

3(a)   The Child’s View

1. The child is only seven years of age.  Ms B (first report 6.3.25) notes:

   “[The child] told me it had been good to see her father and that she would like to see him again.”

2. Ms B and the Contact Centre, both independent sources, record positive interaction between the child and her father from which it could readily be inferred the child wishes to spend time with her Father.

3(b)   The Nature of the Relationship of the Child with Each of the Child’s Parents and Other Persons

3(c)   The Willingness and Ability of Each of the Child’s Parents to Facilitate and Encourage a Close and Continuing Relationship Between the Child and the Other Parent. 

1. There is no challenge to the Mother being the primary parent.  I am satisfied the Mother has a very close loving relationship with her daughter.  The child has also bonded with the maternal grandmother.  Unfortunately it is abundantly clear the Mother will do little to foster a relationship between the child and her father.

2. In granting the Father time with the child, the child will have the opportunity to develop a relationship with her Aunt M and her cousin G as well as other members of that extended family.  I expect G could be a very positive influence on the child given her age, her academic record and her sporting prowess.

3. The Mother indicated she would have great difficulty accepting the father’s sister M Capro as a suitable supervisor.  That may be so but I am more than satisfied M would act responsibly at all times.  The Independent Children’s Lawyer was of a similar view.

4. If the Mother has difficulty accepting this fact I do not see it as a basis for insisting the Father’s time with his daughter should be restricted to the confines of a Contact Centre.

5. The Mother has been enterprising enough to seek help in the past as recommended by Dr L.  She underwent counselling for a two year period as recorded in her letter to the Independent Children’s Lawyer of 2 October 2007 (exhibit 5).  The Mother asserts in that letter that this counselling improved her self esteem and demonstrated a commitment to ongoing personal growth.

6. If the Mother is distressed or upset by the Orders of this Court she may well need to re-engage in counselling to assist her in overcoming such anxiety.

3(d)   The Likely Effect of Any Changes in the Child’s Circumstances

1. I expect no adverse impact on the child from spending time with her father one day a week.  The major problem is expanding the Father’s time with the child at some future point in time.  I am reluctant to make orders for overnight time either supervised or unsupervised at this point in time.

2. I will leave that prospect open for the parties to negotiate.  If not, it can be referred back to Court for further determination.  I am reluctant to adopt this course causing further expense and stress to the parties but it is safer than putting in place a long term plan at this stage where the Father has only had such limited time with his daughter in the past three and a half years.

3(e)   The Practical Difficulty and Expense of a Child Spending Time with and Communicating with a Parent

1. There was very little focus on the issue of a changeover point.

2. The Mother lives at N in the outer suburbs and the Father lives close to the central business district.  M Capro’s residence is at R which is a suburb proximate to the central business district. The McDonald’s Restaurant at Y is suggested as an appropriate changeover venue by the Father.  I do not see that it is in the parties’ interests to have to drive all the way to the Logan West Contact Centre which would involve considerable time and expense particularly as I have recently been informed that that Contact Centre is relocating even further from the Brisbane central business district.

3. I propose to leave it to the parties as to who will attend changeover and how they will structure it.  It could be that the Mother will deliver the child to her aunt’s home at the commencement of contact and the Father is to arrange for the child to be returned to the Mother’s premises at the conclusion of contact.  It could be the parties will arrange for collection and return to occur at a venue such as McDonalds Restaurant at Y or some other suburb.  In the event the parties are unable to agree then the matter can be referred back to Court for further determination based on evidence presented at that time. 

4. The advantage of the parties no longer using a Contact Centre is that it will be a saving for both of them.  If the child is engaged in any extra-curricula activities I am confident the Father is capable of taking the child to such activities.  The Mother was of the same view when she was writing to the Father offering time unsupervised with the child on 22 April 2007 and 26 June 2007.

5. I propose to allow the Father to have eight hours a day from 9.00 am to

   
   5.00 pm

   each week on either a Saturday or Sunday at the Father’s election.  It would seem to me that the Sunday would probably be the more convenient time when the father’s sister and her partner would be available to supervise but I leave it to the Father to decide after consultation with his sister.  I will also make an order in general terms that the Father may have contact at all such other times as the parties may mutually agree in writing.  This will allow the parties to negotiate additional periods or lesser periods as circumstances may warrant. 

6. If the Mother wishes to take the child on a holiday for a few weeks it is to be hoped that the Father would graciously accede to such request and suspend the Orders to allow that to occur.  It is to be hoped that with a generosity of spirit not previously exhibited the Mother would reciprocate by allowing the Father additional weekend time by an extra day each weekend for a period of time to make up for any time lost.

7. The primary reason why I am ordering supervision is three fold:

   (1)I have a concern that the Mother’s allegations about the Father’s angry outbursts and disciplining of the child may have some substance.  I have some concerns that if unsupervised, particularly overnight, the Father would engage in heavy drinking and/or smoking drugs.  I have no concerns if the Father’s time with the child is supervised by his sister or her partner.

   (2)By making an order in these terms it is a protection to the Father against further allegations arising in the future.

   (3)Such an arrangement would assuage the fears of the Mother to some extent although she does not hold the father’s sister or her partner in high regard.

3(f)    The Capacity of Each of the Child’s Parents and Any Other Person to Provide for the Needs of the Child Including Emotional and Intellectual Needs

1. It is obvious from the Mother’s own testimony that the Father cared for the child at times during the course of the relationship, even at times towards the end of the relationship when the child was four years of age.  The Mother was working and the child was at a day care centre on some occasions but it would appear from the evidence that on many occasions the child was left with the Father to be cared for.  Once again, one could ask the rhetorical question – what changed?  I suspect the analysis by Ms B quoted in the opening paragraphs of this judgment may have something to do with it.

2. The Mother made offers of unsupervised time in her letters of 22 April 2007 and 26 June 2007.  These letters were written over a period two months apart.  I cannot account for the Mother’s change of heart other than the fact that there was some interaction at Court or because she had no legal representation she felt somehow she had to resolve the matter.  The Mother is an intelligent woman who has had extensive counselling and says she is now quite independently minded.  I find her account of the events surrounding these communications to the Applicant less than convincing.

3. As to the capacity of the Father to care for the child overnight I note that his accommodation is not really suitable for this type of arrangement.  The accommodation that the father’s sister can offer seems to be at stretching point – she resides in one room with her partner, G has her own room and the two Asian students seem to occupy a room each.  There would be little opportunity for the Father to stay overnight with his daughter or for the daughter to stay there overnight.  This may change in the future if one of the students should leave or there is a spare study or room where a bed could be made up.

3(g)   The Maturity, Sex, Lifestyle and Background of the Child

1. No useful comment to make.

3(h)   If the Child is an Aboriginal Child or a Torres Strait Islander

1. Not applicable.

3(i)    The Attitude of the Child and the Responsibilities of Parenthood Demonstrated by Each of the Child’s Parents

1. I accept both parents care deeply for the child and it would seem that love and affection is reciprocated by the child.

2. In the face of considerable frustration the Father has to his great credit persisted with visits to the Contact Centre for the past fifteen months. I accept from the records of the Contact Centre it must have been very frustrating at times for him.

3. I am not satisfied the Father would ever harm the child but for reasons given previously I do propose to order supervision at least for the foreseeable future.

4. The orders that I make accord with submissions made by the Independent Children’s Lawyer other than the fact that the time is slightly longer than the recommendations made.

Telephone Communication

1. At paragraph 2(c) of his outline of case document the Father seeks an order for telephone contact on any day of the week between 6.30 pm and 7.30 pm.  To my mind such an order is not appropriate.  There was virtually no evidence directed to this issue.  For her part the Mother did not seek any order in relation to this aspect.  It is appropriate that there be an order that the child have telephone communication with her Father at all such times as the parties may agree in writing but failing agreement each Tuesday and Thursday between 6.00 pm and 7.00 pm

Special Days

1. Again no evidence was directed to this but I do not see why the Father’s time with his daughter should not extend to special occasions such as the child’s birthday, Christmas and Father’s Day.  I will put in place provision for this.  The Father clearly sought orders in those terms in his amended application.

Postal Communication

1. The child is, I assume, too young at this stage for email communication although this may not be so.  The parties are at liberty to arrange for the child to be able to communicate in this fashion.  I will make an order in general terms that the Father have liberty to communicate with the child by forwarding letters, cards or gifts to the child at the Mother’s residence.

2. For the above reasons I propose to make orders as set out at the commencement of these reasons.

I certify that the preceding one-hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  2 July 2008