Minisini-Crowe v Cragnolini [1994] PGNC 78; N1214 (10 March 1994)

N1214

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MC NO. 11 OF 1992

OLGA MINISINI - CROWE
-Petitioner-

-V-

ARRIGO CRAGNOLINI
-Respondent-

Waigani: Brown J.
1994: 7, 8, 9 &10 March

Matrimonial Causes - Custody and access - Decree nisi of dissolution of marriage - Application for custody in petition for dissolution by non-custodial parent - Decree not to become absolution until Court satisfied that proper arrangements made for welfare of the child - Matters pertaining to welfare of child paramount consideration - Reasons for change of custody.
Matrimonial Causes Act Chapter 282 s. 59(2) & (3).

Practice & Procedure - Registrars decree absolute of dissolution of marriage made on expiration of statutory period - No order by the Court that (i) proper arrangements made for the welfare of the child or (ii) notwithstanding that the Court is not so satisfied there are special circumstances that the decree should become absolute in any event - Contested petition for custody - Registrars order a nullity.
Matrimonial Causes Act Chapter 282 s. 59(2) & (3).

Proceedings for dissolution of marriage, including a petition by the wife for custody of the only child of the marriage came before the Court on the 28 May 1992 when a decree nisi for dissolution of marriage was pronounced but no orders were made as required by s 59 (2) or (3) of the Matrimonial Causes Act. On the 27 October 1992 the Registrar made an order, pursuant to his powers under the Act, that the decree nisi had become absolute. After that time, proceedings for contempt in relation to access orders previously made by consent were instituted by the wife and the husband, was found guilty after a contested trial, and given a jail sentence which was suspended upon him entering into a bond to be of good behaviour. During the bond period, he violently assaulted a person with a shot gun and was arrested, charged and convicted by the National Court of an offence involving actual bodily harm. it would appear that the trial judge when sentencing was unaware of the existence of the previous bond.

The facts surrounding the Courts consideration of the child's welfare appear from the judgment.

Held:

(i) The husband's attitude towards his wife and his responsibilities towards his son, then aged 11, were unacceptable when the Court must consider the child's welfare as paramount.

(ii) In the circumstances, although the fact of the father's basic care for the child, contrasted with the wife's relatively better off family life style did not, by itself, warrant a change of custody, the child's tendency to withdraw when faced with stressful situations coupled with his somewhat retarded learning capabilities warranted a change of custody to an environment where the wife was more aware of her responsibilities for the upbringing of the child, and had exhibited a willingness to foster the child's welfare.

(iii) In the absence of clear orders by the Court pursuant to s 59 of the Act, the Registrar cannot, by administrative act, circumvent the requirements of the section and through effuxion of time, make an order that the decree nisi has become absolute.

Application for Decree of Dissolution of Marriage including an application for custody of the child of the marriage.

Mr J. Merrick, for the petitioner wife
Mr J. Shepherd, for the respondent husband.

REASONS FOR DECISION

BROWN J.: This is an application for custody which comes by way of petition for dissolution of marriage originally before the Court on 28 May 1992 when a decree nisi was made on the wife's application. Included in the petition was a prayer for relief in relation to the child Marco Leonardo Cragnolini who was born in Papua New Guinea on the 29 July 1982. The child has been residing with the Respondent husband since the 29 December 1986 when the marriage irretrievably broke down. There had been various other proceedings instituted in the District and National Court in relation to the custody of the child Marco although by consent on the 12 May 1987, in proceedings OS 157 of 1986 the National Court ordered custody of the child to the husband and made ancillary orders in relation to access in the wife's favour.

The petition was filed on the 24 April 1992. Since that time the wife had instituted proceedings for contempt of the previous court order for custody and access. Those contempt proceedings came before me on the 3 & 5 June 1992 when the husband was found guilty of contempt in that he failed to comply with the Court Order requiring him to provide access by the wife to Marco Cragnolini between the hours of 7pm on the Friday of each week to 7pm on the Saturday.

After hearing the evidence of the parties and reading the exhibits I had found that the husband's breach of the access orders was contumacious and he was convicted of the contempt.

On the 27 of October 1992 the Registrar signed a Certificate that the decree nisi of dissolution of marriage made by the National Court on 28 May 1992 had become absolute on the 14 August 1992. This Certificate is a nullity for in the order granting the decree nisi of dissolution of marriage, the Judge had made no finding required by s 59 of the Matrimonial Causes Act, either that proper arrangements had been made for the welfare of the child or that notwithstanding, the Judge was satisfied that there were special circumstances that are existed, notwithstanding the absence of proper arrangements. The section is mandatory in terms. The Registrars powers under the Matrimonial Causes Act, so far as the Certificate is concerned, are administrative and flow from the fact that the decree is expressed to become absolute after a period specified by the Act or shortened by the Judge. The Registrar has no executive powers and in the absence of compliance with the mandatory provisions of s 59, any purported certificate that the decree nisi had become absolute, in these circumstances is a nullity.

Application for Custody

I want to firstly deal with the contempt finding. I had to ask myself whether it barred him from opposing the wife's application for custody. It used to be the law that a party in contempt would not be heard until he purged his contempt. He has lodged money pursuant to his undertaking to be of good behaviour to avoid serving his jail term so to that extent he has purged his contempt. In my view the circumstances giving rise to the contempt his clear contumacious conduct in breaking the Court Order for access; the period of time in which the contempt continued; the benefit to the (husband having the effect of alienating the child's affections from his mother so that the child was solely dependent on his father for emotional support); the detriment to the wife (evidenced as she describes it as her expressed guilt in deserting the child albeit in a situation not of her making), while not a complete bar, certainly makes me wary of his evidence and I have to consider whether orders will work without a coercive element.

The nature of his behaviour towards his previous wife in the course of the contempt proceedings, the fact of this more recent conviction for an offence of a most serious type involving violence and the firearm, are more immediate factors which directly affect his chances of retaining custody. The fact of his contempt does not, in my view, have the effect on these proceedings, as does the immediacy of his violent nature, exhibited from time and again. This is a material factor which must continually kept in mind when considering the welfare of the child.

That is how I propose to deal with the conviction for contempt. It doesn't prevent him from succeeding today.

Mrs Cragnolini's first witness was Julian Birch. I found her to be a most reliable witness with a strongly developed sense of neighbourliness. In other words she cares. She cared sufficiently note the boy Marco's attitude in 1988 and 1989. He was then aged 5 to 7. Then the child appeared withdrawn and in Mrs Birch's opinion, suffered some psychological disorder. He must have been a sorry sight to give that appearance. Yet he seems to overcome any deprivation for she is happily able to report that in December 1993 she saw a totally different boy. He chatted, he was open not withdrawn, he was polite and pleasant. She observed him for about an hour.

On her evidence it was clear that the Turf Club had no facilities for children apart from the pool. It is oriented towards adults social intercourse and I am satisfied an unsuitable venue for a boy of that young age. But the husband was a snooker player, he enjoyed his drink and he was a habitue. He would say he had little alternative but to have Marco accompany him and I probably agree with him. Since he was then separated and without child care help, in those early days the father's attributes fall short of providing maternal care. The man exhibits his propensity for drink, snooker and companionship with his own kind. A male trait not extraordinary anywhere in the world.

With Mrs Birch description in mind the boy's childhood was deprived of his mother's love, care and affection. His school report reflects a sore deficiency in ability to absorb teaching, conformation of Mrs Birch's observations of a withdrawn child who did not relate to those beyond his immediate proximity and totally depended on his father for input of any sort. He was a dependent child.

Mrs Susan Hay-MacKenzie gave evidence. She confirms my view of the wife as a gregarious type well able to command your attention, an emotionally charged person. Mrs Hay-MacKenzie is attracted to Mrs Cragnolini, they evince a close relationship and I have no doubt Mrs Cragnolini is a good mother. She is perceived by Mrs Hay-MacKenzie as such, their families mingle, the children are friends and I have had a chance to assess Mrs Hay-MacKenzie's summation of Mrs Cragnolini's matriarcial abilities. Mrs Hay-MacKenzie is an astute woman. Her boy Curt aged 13 and Victoria aged 8 afford Mrs Hay-MacKenzie criteria by which to judge Marco's social development and now she says, in fact, that there is no deviation from what may be termed normal. She says he is a fairly normal boy. She says his mother is warm towards him, his mother is a good cook, she corrects Marco when necessary, she expects a certain standard of cleanliness and dress, she has Marco doing his share of household chores and she has the boy responding. Mrs Hay-MacKenzie did not say so in so many words (attributing the access visit to Marco's change personality), but her evidence left me with the clear impression that the mother has brought the boy out of himself to some extent.

Hearing Mr Cragnolini myself she could be described as having an infectious personality and her relationship with her son, for instance would certainly call for responses. Mrs Hay-MacKenzie sees Marco's responses as positive. His vocabulary is good, he plays with her children, he is communicative and she has witnessed the change in the child from that withdrawn boy of earlier years.

Mr Shepherd tried to paint some danger at the race track but I disregard that. The only danger I perceive is the noise. Mrs Hay-MacKenzie did have an opportunity to experience a visit to Mr Cragnolini and also saw a less pleasant side of him when she accompanied Olga late in 1992 to exercise access. I accept her where she says that he shouted offensively to them both, asking them to leave.

Mrs Hay-MacKenzie described Marco as sometimes quiet. She was asked if he was depressed, unhappy. She described the incident when he been very upset but that his behaviour then was not unacceptable. He did not throw a tantrum, swear or become violent rather became very reserved and wept shortly. She agreed when asked if he appeared a well adjusted quiet happy child but she was not asked about his school reports which reflect inability to cope with the basics of school work in my view.

I am satisfied on her evidence that any stressful situation causes the boy to retreat into himself and distance himself from the cause of stress. He's careful to mask any feelings of anger or aggression he may feel while he is in the company of his mother or Mrs Hay-MacKenzie.

John Crowe gave evidence. He is Mrs Cragnolini's de facto husband. He is the General Manager of an Aluminium Fabrication and Retail Business in Port Moresby. This is a contract position and he has a contract which expires in 1996. He indicated that the contract was renewable by mutual consent but that he had no intention of leaving Papua New Guinea in the present circumstances. He has been with Mrs Cragnolini since 1987 and they have a daughter Stephanie aged 5 by their union. Mr Crowe was previously married and has two grown-up daughters by that previous marriage. I am satisfied he can adequately provide financially for his present family and that he is capable and willing to provide for Marco if he were to live with them. I am also satisfied that he has a stable relationship with Olga which has subsisted for some 7 years. He describes his relationship with Marco as an adult friend of a young lad and on hearing him give evidence I can imagine that would be so. He does not have the ebullient personality of his wife and I can imagine that a young boy of 11 reserved in the presence of strangers perhaps, with a natural reticence to open to a man in Mr Crowe's position viz a viz his mother, would have no other than a harmonious relationship albeit wary. With that in mind I find Mr Crowe to be an honest, reliable witness. He states that the boy's behaviour is good. Since the time that he swore his affidavit in July last year Marco's general demeanour and behaviour has remained the same. He doesn't know of the boy's progress at school although he felt his attention span on the holiday cruise was not good but has improved since. On the holiday cruise he had to prompt him and closely supervise his homework to see it done. He had no reservations about Marco's relationship with his mother nor his relationship with Sophie. He is the President of the Port Moresby Speedway Association, has been for 3 years, he is a man of acknowledged business abilities with a community awareness. He is a man who takes his responsibility seriously. He did not take advantage of my question about the possibility of a violent temperament in Marco rather was consistent with his earlier evidence, denying having seen evidence of any violent propensity in the boy. This aspect I'll come back to when I deal with the husband's evidence.

Mrs Cragnolini gave evidence. She also filed her affidavit in July of last year and was cross examined on it. In her affidavit she dealt at some length with the Court Order for custody that she had obtained in Italy. To my mind she has preserved by that Court Order her rights to plead for custody of the child in Italy in the face of the possibility of her husband Arrigo taking the child back home to Italy with him. No criticism can be levelled at her in the circumstances of her separation from Arigo. Arigo procluded her from maintaining any access to the child for a period in fact he did all in his power to prevent her from seeing the child after she did endeavour to take the child from him many years ago.

I don't propose to place any weight on those matters for they are long since and more recent circumstances particularly the de facto marriage relationship with John Crowe (an Australian) and the birth of their daughter Stephanie have supervened.

The reasoning for the Court Order in Italy however remains unclear to my mind. Nevertheless I do not consider that it need affect my determination of this custody application for the child has always been in Papua New Guinea and so, for all intents and purposes, have the parties. Both intend to remain and while Mr Cragnolini has consistently expressed reservations about his wife's intention, there is no evidence that she has the financial ability to go back to Italy or the support there to do so successfully.

The suggestion also flies in the face of the present relationship with Mr Crowe. I accept her implied wish to remain here with Mr Crowe.

Mrs Hay-MacKenzie's evidence reassured me that while Olga may have glossed over the boy shortcomings in her evidence, she is aware of them. She expects a certain standard of behaviour by Marco towards her and towards Stephanie. She supervised his homework on the cruise. She sets him tasks, she is warmly committed to him. She has developed his social graces. She recognises his needs to mix with other children but my reservation, expressed to counsel in their summing up, was whether she recognised the close bonding he had with the boy's father, whether destructive or not, in her view. She had not discussed the possibility of a change of living arrangements with him, when she would have known full well that Mr Cragnolini had an expressed dislike for her. She has not indicated to me, at any rate, that she has faced the likely concern or worry in Marco. The boy may well talk openly but nothing has been said about this most important matter, the possible change of living arrangements.

At least in the last 14 months access has worked well and the boy has exhibited, while in her care, no adverse feelings towards her or Mr Crowe, whilst with them.

I am satisfied that she is willing indeed anxious to look after him and with Mr Crowe's help, able to do so. She had highlight two aspects where she can afford better assistance she says than the father. She says she has the time and the patience. She has time for she is not in the paid work force. She sees Marco's care as her responsibility as the mother, for she fears that she may have neglected him. Perhaps she has a sense of guilt to be assuaged by pursuing this application, for on her evidence, apart from the backward school results, the boy presents as perfectly normal. Has she an ulterior motive in pursuing the application to gain ascendancy over her husband Arrigo perhaps and indirectly to affect his entitlements to a share of the matrimonial asserts?. Be that as it may, my paramount consideration must be the welfare of the child, not the reasons for the parties respective stances in this custody application.

Whilst she says that her actions spring from her duty as the boy's mother, I am satisfied that there is a natural love expressed for the child, for her answers clearly have a possessive ring about them. I also note Mrs Hay-MacKenzie's comments about the warmth which Olga exudes towards the child. As I say she is willing, capable and has identified two weaknesses in the boy's character, his behaviour (which she was unable to elaborate on) and his schooling. Both flaws have driven her to action. She has taken steps to correct his behaviour by encouraging him to speak to people, (acknowledge them) and she has seen his teachers to see what can be done at school. The boy sounded to have been inept in company, when access was first commenced. His social graces then, spring from the association he has had with his mother and her new family. What she has not identified is the underlying problem which inhibits the boy's educational growth. I say that, relying on the school reports which consistently point to his lack of progress.

Mr Shepherd points to the second semester report as evidence of progress. It seems to me encouragement rather than progress. In Language and Art, Mathematics, Written Process, Reading and General Studies - all are weak; all border on steady growth except Oral Communication (in the normal range). In other words he talks like anyone else. His Physical Education only, falls within the normal development range, while Art and Craft are marked up somewhat. What is important from my point is view, is the attitude of the mother and the father to this somewhat lethargic development of Marco's academic skills. His mother is concerned and has become involved to an extent, by seeing the teachers without having been called upon to do so.

After her evidence, documents were exhibited by the Deputy Registrar. The first was the Reasons for Decision by the Trial Judge in Criminal Proceedings against Arigo and the second was the Certificate of Conviction on the charge that he unlawfully wounded Willie Tuaru with intent to cause him grievous bodily harm. The Respondent husband was sentenced to 2 years in hard labour, suspended on a 2 year good behaviour bond. He was ordered to pay compensation in the sum of K2,000.00. The circumstances were that following a drinking session the victim took the Respondent's vehicle from his home without permission and went joy riding late at night ostensibly to seek cigarettes, the Respondent awoke, found the vehicle missing and went looking for it with a shot gun. He found the vehicle, the victim and another occupant at a tucker shop, ordered the persons out of the vehicle and then shot towards the victim because as he said to me 'they were too slow in moving". The victim was struck by gun pellets to the side of his face and his left little finger was also shot.

I've dealt with him on the breach of bond which I earlier given him, fining him One Thousand Kina. The conviction for this crime of violence does not preclude him from seeking custody. The fact of the conviction, the suspended sentence, the likelihood of him spending time in jail, the nature and seriousness of the offence, are all matters that I am expected to take into account but are not determinative, on their own, of his chances for custody.

In the husband's case Mr Maolo gave evidence. I must say he impressed me as a responsible, astute man who had a close friendship with both the father and his son Marco. I listened carefully to Mr Maolo. He satisfied me that the Respondent husband is a loving, caring father in his fashion. It is also clear that the father has a rapport with his son on a basic level which gives Mr Maolo no cause for concern about the child's welfare. Having heard him I am satisfied that the boy's material wants, his physical welfare, the opportunity to do manly things, mix with his childhood peers, engage in outside interests (at the Islander for instance), look after his dog and cat, go fishing and feel part of the wider group, (not just his father's son) are adequately catered for by the present custody and access arrangements. While the wife may at first instance have a more attractive lifestyle in the eyes of some, have a social life which includes other complete families as it were, and seemingly has more disposable income for the use of the family, that in itself does not warrant a change of custody. Some may say doing without in these days of relative affluence may develop an independence and sense of purpose in a child, sometimes lacking in those that are spoilt. In any event the relative lifestyle options do not warrant a change of the living arrangements.

Another aspect where Mr Maolo did help was the niggling doubt that had crept in my mind, that the Respondent husband was basically incapable of maintaining a relationship and that such relationships tendered to be destructive as has been the case with Mrs Cragnolini. Mr Maolo satisfied me that was not the case rather the Respondent husband has a friend in Mr Meiolo through thick and thin. Mr Maolo recognises in Mr Cragnolini his friend too. Consequently I am satisfied that Mr Cragnolini loves his child Marco with a open fatherly love which Mr Maolo was quick to point out. Mr Maolo was a good witness.

Mr Vukos also filed an affidavit and he was sworn and gave evidence. He was also a friend of Mr Cragnolini, tended to somewhat aware of his self importance and the need to impress that on the Court. His personal relations with Mr Cragnolini were not that often or close and I prefer the evidence of Mr Maolo. As Mr Vukos said he was to give character evidence. He was not cross examined on Mr Cragnolini's conviction for causing grievous bodily harm with a shot gun but with his ethnic background, in these trying times in the Balkans it was probably better not that he be not cross examined.

Mr Cragnolini gave evidence. His affidavit had only been filed yesterday. The housing and day to day arrangements for the welfare of the boy were detailed with sufficient precision. As I say I am satisfied there is nothing, bearing in mind the husband's standing in the community and his own standard of living, to give me any doubt that the boy has been adequately looked after.

His demeanour in the box gave me my first real opportunity to assess his personality. Mr Merrick's cross examination of him left me in no doubt that he rankled whenever he felt there was implied criticism of his care for the child. Mr Merrick's cross examination over the child's school reports was particularly telling. He was asked "do you make sure Marco does his homework" and he answers "yes". And he was asked "does he complete his home assignments" and it was pointed out to him from the school report of the 1st semester of 1993 that the comment was that he seldom completes. Mr Merrick then asked him "what do you say about that". Mr Cragnolini said "I know what he's got in his bag, he does that, maybe leaves home with work in his bag, I'll have to check". Those comments about "failing to complete" were a theme running through the reports for sometime.

What am I to make of it. I think it is fair to say his supervision of the boy, so far as his school work is concerned, is inadequate and his appreciation of this child's difficulties at school is entirely lacking. Either that or Mr Cragnolini was engaged in a little spitefulness with counsel and that he was unconcerned at the school teachers comments. Either way his attitude towards the boy's lack of progress at school was worrying to me. Earlier he was asked whether there were any tensions between him and his previous wife and whether such tensions were of his own doing. He was asked whether he was bitter towards her and he said "no". Yet it is clear on his own evidence he is bitter for what he perceives to be unjust attempts to take the child back to Italy. His answer leaves me with the clear view that he cannot recognise his own feelings of bitterness. Again he was asked later on, (I found to be most illuminative of his attitude). "You satisfied that Marco has a good mother" and he said "not really". Mr Merrick asked him "why do you said that?" and he said "when Marco came back I asked him questions - that's where the little shit comes out, daddy he said "I don't like to go with that little shit, she slams the door, mums hard on me - he gritted his teeth". In other words Mr Cragnolini is relying on the child to determine his attitude towards Olga. He is transferring the responsibility for deciding whether Olga is a caring mother to the child and accepting the purile views of the child complaining of his sibling (Stephanie) as justification for putting down the mother. In that regard I found the husband to be immature.

Mr Merrick went on to question him about his conviction. He asked him whether his behaviour was normal. He said "it may not be". He went on to ask him "what effect would it have on Marco, the knowledge of the violent assault" and Mr Cragnolini said "no effect at all". Mr Merrick asked him "are you telling the Court that had no effect on the child" Mr Cragnolini said "he didn't say nothing to me about it - whether it's right or whether it's a wrong thing". Clearly the father is relying on what the child tells him.

Mr Merrick took him back to his relationship with his former wife. He asked him whether the relations between them had eased somewhat. Mr Cragnolini was quick to say "I haven't got any hard feelings" but Mr Merrick immediately referred him to the incident on the 1 January, the verandah incident when he told the two ladies to leave in no uncertain terms. Mr Cragnolini said "I wasn't upset - I just said what I said. I said it when I was sober". I don't believe Mr Cragnolini when he answers Mr Merrick to the effect that "he's got no hard feelings". He either doesn't admit the bitterness or is attempting to deceive me. I prefer the earlier explanation for it is consistent with my finding that his attitude towards his conviction and the boy's school reports are immature.

The question of school fees came up. Clearly they have not been paid and clearly on his evidence he had no funds readily available to pay them. If funds are in Trust then I see no reason why, in the child's interest, they shouldn't be released. But nevertheless his financial state on the evidence is not good. He is reliant on his brother for work although the child has been with the brother of Mr Cragnolini as a caregiver during the day also. What those arrangements are I don't know. Mr Cragnolini was loath to go into detail about his plans and his evidence left me with the impression that his financial situation is precarious. He's not able to pay the school fees at this moment. He's been given a order to pay compensation in the Criminal Court and he's also been ordered to pay a fine in a hefty sum of a thousand kina in relation to his breach of his own bond which I gave him. His financial situation is precarious. He was then asked questions about the person by the name of George Mallick who had known him for 20 years. It was suggested to him that he was a violent sort of man and he denied that. It was suggested to him that Mr Mallick had been banned from the Car Club for firearms threats in 1990 and he said he wasn't aware of that. It was put to him particularly that the Committee in 1990 included his brother and that he consequently should have known about the banning of Mr Mallick. He said "no". Clearly you ask yourself whether that is inherently likely or unlikely and to my way of thinking it is inherently unlikely. I don't accept Mr Cragnolini on that aspect.

Having regard to the tenor of his evidence, I consider his understanding of his responsibilities towards the boy is basic. He was asked "please explain your responsibilities as a father" he said "I look after him. I help him at school. I feed him. I make sure he goes to school". He was then asked "how is your own behaviour important to Marco and he looked puzzled for awhile and he said "its very important to Marco". I am also satisfied his ability to express himself is slight. This must also be the degree of communication to be expected with his son. He either won't or cannot see that the child will ape him, follow him. He will be a role model. He refuses to accept that. On the evidence he can be objectionable in public. He swore at Stephanie in circumstances which were inexcusable. He denied it. I don't accept his denials in the face of Olga's own evidence of a history of just that sort of behaviour. He can be violent and he's recalcitrant as the tenor of his evidence shows. His stories on two occasions were rebutted by both Mr Crowe and Mrs Cragnolini.

I pass now to Marco. He is 11 year old, turning 12 on 29 July 1994. He's lived with his father since the parties final separation on the 29 December 1986. I've not spoken to the child although I am entitled to do so if I wish. I perceive that because of his young age; that fact that Mrs Crowe has not broached the topic with him and the dominant, possessive nature of the husband, no good cause will be served if I speak with the child about his wishes. His manner of dealing with stressful situations has been described as a withdrawal. To speak with him would in my view unnecessarily suggest to the child that he is one of the adversaries in this cause and responsible in some way for the eventual orders. That is not the case. I do not think it would be right if I were to speak with him. His school reports have given me great concern and I broached those concerns with counsel.

It is not so much the low marking that I have been caring about. I have been casting about for a reason for his apparent inability to take in his lessons. Apart from Mrs Birch's earlier assessment (which she's changed more recently), there is no suggestion that the child is dumb. His tenancy to withdraw coupled with his apparent slowness at school seems to me to be both a protective mechanism and possibly an attention seeker. As a child he must have felt the aggressive outbursts exhibited towards his mother and since the separation seen the violent reaction by his father when things did not go his father's way. His fight in public at the Turf Club with Mr Meiolo is but one instance of that. He has developed his ability to withdraw and in my view he's not been able to connect at school for fear of criticism from the teacher. By not connecting he has avoided the possibility of being hurt and in fact he has been given greater attention. A child cannot develop much beyond the care-giving parents level without quite some input from outside influences.

More recently there has been a change of social mores and I am satisfied that is due to the input of the other family, the Crowes, during access. But his schooling has not improved to any large extent and clearly his father is not particularly concerned. I am concerned also that the bad feelings that the father has for Olga have been loaded onto the boy. That shows to my mind that the boy has adopted this bad feelings as a method of bonding to his father, so that they both feed as it were, on the father's dislike as a means of mutual support. It seems to me that this is unhealthy and does not give the child any opportunity to grow up and consequently grow apart and become independent. He exhibits a dependency on his father for his emotional needs. His relationship with his mother certainly has not progressed to any extent in the emotional field.

Before I heard Mr Cragnolini I was very wary of considering a change to the established living arrangements for I feared moving the child would unnecessarily load him up with more guilt as if the boy was to see himself the cause of his father's increased frustration and anger. A move in these circumstances I felt, would be counter productive. In other words, whilst the child was suffering a deprivation (which reflected in his inability to cope both at school and in his relationships), a change would cause more worry through ignorance of the reasons or imperfectly expressed reasons (if the father was to explain). And more withdrawal on the boy's part for his own protection.

My reasons for my Decision

The father's evidence has made a decision on custody clear. The husband has carried a load of dislike for his previous wife for so long. He appears to no longer recognise the effect that it must be having on his child or on himself. I think that is partly the reason for the boy withdrawing. I think it is unhealthy. It is not in the boy's long term interest if he is to relate well with females, especially his mother, as he goes into adolescence and adulthood. His responses are clearly conditioned by his father. His father's responses in cross examination in those areas so important to a child's upbringing are unacceptable.

For all these reasons I am satisfied the boy's best interests now lie with a change of custody.

I award custody to the mother.

There has been argument about who should have custody of the child's passport. So far as this passport is concerned, there have been problems in the past. The mother is now the custodial parent and as such she is entitled to have control of the boy's passport. The husband has a fear that the child will be spirited from the Court without warning beyond the jurisdiction of this Court's orders. Mrs Cragnolini points to no co-operation before and to the fact that she was put to trouble and expense to arrange for the boy's overseas trips on other occasions. It seems to me that the husband's fears are somewhat irrational. Nevertheless if I was to remove the risk by holding the passport I would not be giving credence to Mrs Cragnolini's expressed wish to remain living in country with Mr Crowe and her daughter Stephanie. If circumstances should change then Mr Cragnolini can come quickly to this Court, at his own expenses this time, to seek restraining orders.

Mr Shepherd has asked that I delay implementation of the custody order to enable arrangements to be made and settle the child. To delay implementation beyond the period reasonable to physically organise the boy's packing and adjust schooling arrangements is not wise. In this case the father has consistently shown antagonism towards the wife. The sooner the break the better. I accordingly propose to make orders that the child be made available for collection by the wife this Friday. As I said at the outset there may be need for a coercive order and I propose to direct the Officer in charge of the Police Station at Boroko to assist if necessary.

I should say that I dealt with the Respondent husband during the course of this hearing after tender of the Certificate of Conviction in relation to his criminal offence. The proceedings in relation to the breach of the bond do not form part of my written reasons. I should say however that Mr Cragnolini was convicted of the breach of the bond which I imposed as a result of the contempt finding and fined K1,000.00.

Orders -

1. That the Petitioner wife shall have custody of Marco Leonardo Cragnolini born the 29 July 1982.
   
2. The child shall be made available by the husband for collection by the wife at the place of residence of the husband at 4pm on Friday 11 March 1994. The husband is responsible to ensure that the boy is ready and able to go at that time. Any expressed wishes of the child to delay or a refusal to accede to the change of custody may be overcome by reasonable force if necessary. To ensure that there is no breach of the peace I direct the Officer in Charge, Boroko Police Station to make available sufficient constables to be present at the handover.
   
3. The Respondent husband shall have access to the child of the marriage defined to include access by the father to Marco on a Sunday. The first access period will be on Sunday the 27 March and fortnightly thereafter on a Sunday. There shall be no overnight access for a period of three months, then, dependant on the wishes of the child overnight access may be arranged each fortnight from 4pm on the Saturday to 7pm on the Sunday.
   
4. Normal access shall be from 7am to 7pm on the Sunday, the husband calling to collect and delivering the child at the conclusion of access, at the residence of the wife.
   
5. If access is extended then the husband shall collect the child on the Saturday at 4pm at the residence of the wife, delivering the child in the normal fashion on the following day at 7pm.
   
6. Where access clashes with a long weekend unless prior arrangements are made, the access arrangement shall continue strictly in force.
   
7. Future Christmas and Easter Day access shall be by agreement, failing which the child will remain with the custodial parent. There shall be no access this Easter.
   
8. The passport shall be released to the Petitioner wife forthwith.
   
9. The fact of the custody order and these reasons shall be referred to the Judge who ordered a decree nisi for dissolution of marriage in the first instance with the view to consideration of a decree absolute.
   
10. The Orders of the Registrar purporting to certify the fact of a decree absolute are a nullity.
    
11. I direct that the school fees be paid forthwith from the moneys held in Trust on the party's behalf pending Court Order in the property suit.
    
12. I order that the Respondent husband pay the Petitioner's costs of the custody application.
    
13. The Orders may be taken out forthwith.