Wendall & James

[2000] FamCA 963

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE NO. AD 2068 of 1997

IN THE MATTER OF:                 WENDALL
   (Father)
  and

JAMES
(Mother)

and

CHILD REPRESENTATIVE

CORAM: THE HONOURABLE JUSTICE ROBINSON

DATE(S) OF HEARING:         6, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22 AND
  23 DECEMBER 1999
  11 AND 28 JANUARY 2000
  3 AND 10 FEBRUARY 2000
  17 MARCH 2000
  10 APRIL 2000

DATE OF JUDGMENT: 14 JULY 2000

JUDGMENT

APPEARANCES: MR McQUADE (instructed by JULIE-ANN SIMKIN) appeared on behalf of the FATHER
MOTHER appeared IN PERSON

MR PICKHAVER (instructed by GRAEME HEMLSEY) appeared as CHILDREN’S REPRESENTATIVE

I have heard competing applications for residence and other orders with respect to K born … 1995.

By his amended Form 7A application filed 28 June 1999 the father, Mr Wendall, seeks the following orders:

“1. That the application of the mother filed on the 10^th of November, 1998 be dismissed.
2.    That the child of the relationship namely K born on the … July, 1995 do reside with the father.
3.    That the father do have the sole parental responsibility for the day to day care welfare and development of the said child.
4.    THAT IN THE ALTERNATIVE
That the father do have and the mother do give contact to the infant child of the relationship namely K born on the … July, 1995 as follows:
(a)each alternate weekend from 4.00 pm Friday to 4.00 pm Sunday;

(b)for one half of each of the school holidays;

(c)on Christmas Day from 3.00 pm to 3.00 pm Boxing Day;

(d)on Fathers Day from 9.00 am to 4.00 pm;

(e)such further or other contact as may be agreed.

5. That the mother do notify the father of any major illnesses or accidents suffered by the child.”

By an amended response to an application for final orders filed by the mother, Ms James, on 3 December 1999 seeks the following orders:

“1. That all previous orders be discharged.
2.    That the infant child K born on the ... 1995 do reside with the mother.
3.    That the mother do have sole responsibility for the said infant child’s day to day care, welfare and development.
4.    That the father do have contact with the said infant child as ordered by this Honourable Court.
5.    That both parties be restrained by way of injunction from changing the said infant child’s principal place of residence from the State of South Australia.”

Short History

The father was born on… 1945 and the mother was born on …1949. They are respectively 55 and 51 years old.

The parties commenced cohabitation early in 1993 for a period of about six months. Following separation the parties maintained a casual sexual relationship until October 1997. They did not marry.

The Child

There is one child of the relationship K born …1995. K resided with the mother until 23 April 1999. Since 23 April 1999 the child has resided with the father.

Background Facts

The father was born in Adelaide. He left school at the age of about 15 years. In about 1972 he married his first wife, H. Their daughter C was born on … 1973. In 1985 they adopted a child born in Korea. The marriage failed and a divorce was granted.

The father then formed a relationship with J, who gave evidence. There is one child of the father’s relationship with J, B who was born on … 1987. The relationship between the father and J broke down in about 1992.

The father had regular contact with C Wendall and with B Wendall. It seems that the father was able to negotiate contact with the children without involving the Family Court.

10. In 1987 the father was involved in a serious motor vehicle accident. He was in hospital for some months, suffering from multiple broken bones and internal injuries. His spleen was removed. He received a number of blood transfusions. The father believes that it was at this time that he contracted the HIV virus.

11. The mother subpoenaed the father’s police record. The record disclosed that the father had an extensive petty criminal record from about 1963 until approximately 1978. The most serious offences involved larceny. He was imprisoned for short periods of time. Since 1978 his three main offences have been related to the use of a motor vehicle. He has also had one other larceny charge since 1978, for which he was placed on a bond. The father has two convictions for charges relating to personal violence. These were an indecent assault in 1964 and an assault in 1965. I note that these convictions relate to events of more than 35 years ago. In cross-examination the father was quite frank about his history of criminal offending.

12. In late 1996 the father was convicted of traffic offences and wilful damage. The charges arose from incidents which occurred whilst leaving the Adelaide Raceway. Another motorist apparently caused his vehicle to shower the father’s vehicle with stones. The father trailed the person he held responsible to his home and caused damage to his motor vehicle.

13. The mother has two adult children. She has a son T James born … 1970 who is aged 30 years. T was for years employed …. The second child is a daughter E James born … 1977 who is aged 23 years and who works for the ….

14. Each of the adult children gave evidence. Each said that they know who their fathers are and that they see them from time to time. It was clear from the evidence of the mother and the two adult children that she brought them up with minimum involvement with or assistance from their respective fathers.

15. The mother met the father in 1991 or 1992 and early in 1993 she went to live with him at his house at [Town I]. The mother’s daughter E James, then about 14, lived with them. The father’s children C and B lived with the parties for some of the time they lived together, C on a full-time basis and B for weekends. After several months the mother moved, initially to [Town F] and then to [Town D]. The parties maintained an ongoing sexual relationship on a casual basis. [Town D] is approximately 64 kms from [Town I].

16. Following the birth of the child the mother had the day to day care and control of her and was then the primary caregiver. The father saw the child regularly, but only in the presence of the mother and for what were brief periods.

17. On 20 February 1996 the mother prepared a will by which she requested that in the event of her death before K attained the age of 16, that her son and elder daughter were to decide what was best for K. She sought to exclude the child from any ongoing relationship with her father. The mother stated “under no circumstances do I wish her father [Mr Wendall] to have her. In my opinion he is extremely irresponsible.” The appendix to the will sets out in some 20 paragraphs allegations by the mother of alleged instances of the irresponsibility of the father.

18. On 14 March 1997 the mother filed a Form 12A application for consent orders and Minutes of Order pursuant to Order 14 Rule 2. The consent orders were signed on 25 March 1997. The orders read as follows:

“1. That the child born of the relationship [K] born on the ... 1995 do reside with the mother.
2.    That the child do have liberal contact with the father but such contact with the child shall be strictly confined to the perimeter of the mother’s home property.
3.    That the mother do have the sole responsibility for the day-to-day care welfare and development of the child.
4.    That both parents are to have joint responsibility for the long term care welfare and development of the child.”

19. On 5 October 1997 the father was admitted to the ... Medical Centre suffering from pneumonia. The mother visited him in hospital on a number of occasions. After several days he was diagnosed as HIV positive. The father was informed of his HIV status on or about the 15 October 1997. On about 22 October 1997 the father told the mother about his HIV status. The mother was offered blood tests for herself and K at the ... Medical Centre. She elected to have the tests done privately and thankfully both mother and child tested negative for the HIV virus. Following the diagnosis the mother refused the father further contact with K.

20. On 9 January 1998 the father filed Forms 7 and 8 applications seeking discharge of the earlier contact order and seeking orders for contact each Friday between 4.00 pm and 8.00 pm and each Sunday from 1.00 pm until 6.00 pm. The mother opposed the contact sought by the father.

21. On 12 February 1998 a Child Representative was appointed for K.

22. On 7 April 1998 the consent order dated 25 March 1997 was varied to provide for contact from 4.00 pm until 6.00 pm each Friday and Sunday. The term of the earlier order that ‘contact with the child shall be strictly confined to the perimeter of the mother’s home property’ was continued.

23. On 8 July 1998 earlier orders were discharged and it was ordered that the father do have contact with K as follows:

“(a) each Sunday from 10.00 am until 2.00 pm;
(b)such contact shall be supervised by the mother and shall take place at the mother’s residence or such other place as shall be agreed;
(c)it is a condition of such contact that J and her son be at liberty to attend during such contact times.”

24. On 10 November 1998 the mother filed a Form 8 application seeking orders that the contact order made on 8 July 1998 be discharged, that contact do cease, that J be ‘dismissed as a potential supervisor’, that B be excluded from any contact with K and for the tabling of an independent assessment of the father’s health.

25. On 4 December 1998 the father filed a Form 8A response seeking dismissal of the mother’s application and an order that he have contact from 9.00 am to 5.00 pm each Sunday and from 3.00 pm to 6.00 pm on Christmas Day.

26. On 8 December 1998 an order was made that during the period of the adjournment the parties attend upon Mr S on 17 December 1998 for the purposes of a preparation of a Family Report and that the wife do provide the child at such appointment and that further that during the period of the adjournment the previous order for contact be suspended. Further consideration was adjourned to 23 December 1998.

27. Mr S interviewed both parties and observed K with both parties and with J and with B on 17 December 1998. Mr S’s report to the Child Representative was dated 21 December 1998. During the course of her interview with Mr S, the mother for the first time alleged that the father was a paedophile and that he had sexually abused his daughter C. The mother told Mr S that she would not tolerate any contact between K and the father unless the contact “is very closely supervised and videotaped” and that if she did not get the result she wanted she would “disappear”. She told him that she was “quite prepared to accept the consequences of such actions”.

28. On 23 December 1998 the Judicial Registrar having received the report of Mr S ordered that the father do have contact to K for one hour on Boxing Day and further that the father do have contact with K from 12 Noon until 6.00 pm each Sunday, commencing on Sunday 27 December 1998. The first two such occasions of contact to be in the presence and under the supervision of Ms M (the father’s niece) and either one of them Mr or Mrs D (friends of the mother) and thereafter that contact to be in the presence of Ms M only. The Judicial Registrar ordered that until further order the mother be restrained and an injunction be granted restraining her from changing the principal place of residence of the child.

29. Contact between the father and K took place on 26 and 27 December 1998 and on 3 January 1999. On 10 January 1999 the mother failed to make the child available for contact. This was the first occasion that contact was to be supervised by Ms M only.

30. In January 1999 the mother travelled to [Town B] to stay with her daughter E for a few days and then travelled to [Town C] in Western Australia and later to [Town Q], taking K with her.

31. On 27 January 1999 the father filed a Form 8 application seeking a location order, a recovery order and for orders pursuant to section 67N(2) of the Family Law Act.

32. On 4 February 1999 an order was made that E James, the daughter of the mother do provide forthwith to the Registrar of the Adelaide Registry such information that she has in relation to the address at which the child and the mother may be found. E James was served with a sealed copy of this order.

33. On 2 March 1999 an order was made pursuant to section 67Q that a recovery order do issue authorising the taking possession of the child and the delivery of her to her father. Further orders were made providing that a sealed copy of the order be served personally on E James and a copy of the order be sent by pre-paid post to the mother at …, [Town D]. The recovery order was stayed during the period of an adjournment to 16 March 1999.

34. On 16 March 1999 there was no attendance by or on behalf of the mother. The stay was not renewed and the recovery order issued.

35. On 21 April 1999, one Ms V, a woman with whom the mother and K were then staying in [Town Q] contacted the Adelaide Registry of the Family Court. She was referred to the Commonwealth Police and arrangements were made for the Commonwealth Police to attend at her home the following day for the purposes of executing their recovery order and removing K from the mother’s care.

36. Some time on 21 April 1999, Ms V told the mother that the Commonwealth Police would be coming to her house the following day to execute the recovery order.

37. It is not in dispute as between the mother and Ms V that on 22 April 1999 when the Commonwealth Police attended at Ms V’s house for the purposes of executing the order, the mother became very angry saying that the father was a paedophile and that he was having incest with his own son. Furthermore, in front of K the mother said to the police “are you going to hold [K] while her father rapes her?”. It is not in dispute as between the mother and Ms V that at the time the Commonwealth Police took possession of K the mother refused to provide them with adequate clothing for K and failed to provide the police with any of her toys.

38. On 23 April 1999 the father travelled to [Town Q] where K was delivered into his care. He returned to Adelaide that day. He and the child have lived at … [Town I] since 23 April 1999. The mother returned to South Australia.

39. On 27 April 1999 the father filed a Form 8 application seeking orders for interim residence and to restrain the mother from removing the child from South Australia.

40. On 30 April 1999 the application was adjourned to 7 May 1999 and during the period of the adjournment it was ordered that the father have continuous contact to K, subject to the following:

“(a)The mother shall have contact to the child on Sunday 2 May 1999 from 10.00 am until 5.00 pm;
(b)such contact to be supervised by Ms M or such other person as may be agreed between the parties or approved by the Child Representative or for an equivalent contact at such other time dependent upon the availability of such supervisor.

41. The parties were ordered to attend Mr S’s rooms on 3 May 1999 for the purposes of a Family Assessment directed to the future welfare of K. On 7 May 1999, Mr S delivered a further report to the Child Representative.

42. On 9 May 1999 the mother moved from [Town D] to [Town N], a town some … kms east of Adelaide. The mother was living at [Town N] at the time of the trial.

43. On 27 May 1999 the mother filed a Form 8A response seeking an order that the father do forthwith deliver up K to her and that the orders made by consent on 25 March 1997 in relation to residence and specific issues do stand in full force and effect.

44. On 31 May 1999 Dawe J heard substantive argument on the issue of interim residence. She had Mr S’s second report.

45. On 2 June 1999 Dawe J ordered that pending determination of competing proceedings for residence and contact, the child reside with her father and he have responsibility for her day to day care, welfare and development.

46. Her Honour said at the conclusion of her reasons:

“This is a situation where I must apply the criteria in Section 68F to two different situations which both have serious negative aspects as far as the child is concerned. Until late April, [K] had been cared for all her life by her mother. Mr S described their relationship as “impressive”.
The father was, until December 1998, seeking only contact. The father has AIDS. His life expectancy is in dispute. The mother expresses great anxiety about unsupervised contact. In many circumstances the child's welfare may require that the child remain with or be returned to the stability of the emotional relationship with the primary caregiver.
Criteria such as the strong bond between the mother and child [Section 68F(2)(b)] and the possible detrimental effect on the child of separation from the mother [68F(2)(c)] are important considerations which I bear in mind. The father has only very limited experience in caring for [K] and his capacity to do so is substantially untested.
On the other hand, serious questions are raised, not established or proven, about the mother’s mental health.
The material in and the significant omissions from her affidavit of the 20^th of May, 1999; her statements to Mr S as recently as early May (being the allegations about the father not mentioned in her affidavit) and her justification for the outburst in front of [Ms V] are all uncontested matters which convince me that there remains a risk, a serious risk, that if [K] is returned, her mother will abscond and hide again.
This would risk [K] being isolated from all her family. Such a risk raises questions of the mother’s capacity to provide for the emotional needs of [K] [68F(2)(e)] and the need to protect [K] from psychological and emotional harm that may be caused by being exposed to the mother’s allegations about the father and any further attempt to hide from him and the authorities [Section 68F(2)(g)].
Balancing all of these factors in this difficult matter, I find that [K]’s best interests currently require that she be protected from the risk that her mother will abscond again, or expose [K] to unnecessary emotional harm. I am satisfied that in the short term that is a greater risk to [K]’s well being than the interruption to her care by her primary caregiver or the risk alleged by the mother that the father’s irresponsible behaviour may cause to [K]’s health.”

47. On 4 June 1999 after hearing further submissions on the issue of contact, her Honour ordered that the mother have contact on 4 June 1999 from 1.30 pm until 5.00 pm and each Monday between the hours of 9.00 am and 11.30 am and each Friday between the hours of 12 Noon and 3.30 pm. Such contact to be supervised by Mr D and/or Mrs D and to take place at the Adelaide Children’s Library or such other venue as agreed between the parties.

48. The mother appealed to the Full Court of the Family Court against the orders of Dawe J dated 2 and 4 June 1999. At the conclusion of oral argument on 1 July 1999, the Full Court announced that the appeal would be dismissed. Reasons for judgment of the Full Court were delivered on 13 August 1999.

49. In the reasons for judgment the Full Court said:

“52.Notwithstanding that which was urged upon us to the contrary, it is clear that in this case her Honour was faced with a dilemma. It was open for her Honour on the material before her to conclude that there was a significant risk that the mother might yet again abscond with J. Further, there was a significant risk that, even if she did not abscond with J, she would continue to make disparaging remarks relating to the father in the presence of the child. Her Honour identified, in our view correctly, that the existence of such a risk raised questions about the mother’s capacity to provide for the emotional needs of J, and raised the prospect of the Court needing to protect J from psychological and emotional harm which may be caused to her by being exposed to the mother’s allegations about the father and any further attempt to hide from the father and the authorities.

53.Her Honour properly recognised there was a risk to J’s wellbeing by being deprived of her mother’s caregiving and that the father may behave irresponsibly towards J in circumstances where he is an HIV/AIDS sufferer.
54.Her Honour balanced those risks and elected to leave the child with the father pending further hearing. We can see no error in the approach by her Honour that would invite interference by an appellate Court.”

50. From 4 June 1999 until the commencement of the trial in December 1999, the mother continued to have contact to K on a weekly basis, save and except for a period of about six weeks in October/November 1999 when the mother did not take contact at all to K because she could not provide a suitable supervisor. The father had offered his niece Ms M or his daughter, C Wendall as supervisors, but the mother declined to have either of them supervise contact. The father drove the child to and from [Town N] to enable the mother to take contact. The journey is about one hour each way. Telephone contact was instigated by the mother with the co-operation of the father during the time that the mother was not having physical contact. That continued to the time of the trial.

51. The mother filed applications for unsupervised contact and with respect to the choice of supervisor in August and October 1999.

52. On 25 August 1999 I directed the Child Representative to obtain a report on the psychiatric assessment of the mother with a psychiatrist agreed between the mother and the Child Representative and in the absence of agreement as nominated by the President of the Royal Australian and New Zealand College of Psychiatrist, with particular reference to her having the care of or contact with her daughter.

53. The mother attended Dr L, Psychiatrist on 4 September 1999. Dr L provided a report dated 6 October 1999, which was annexed to an affidavit of the Child Representative, Mr Hemsley, sworn 27 October 1999. Dr L was not requested to be cross-examined. In the summary and conclusions of his report Dr L said:

“At the time of seeing [Ms James] I could find no evidence of her currently suffering from a psychiatric disorder. Specifically there is no evidence of her suffering from a psychotic disorder despite the description of her in various people'’ statements as being paranoid.
……………………………………………………
……………………………………………………
In summary at this point in time it is my opinion that [Ms James] does not suffer from a psychiatric disorder. I can at this point in time find no evidence either from my interview and examination of [Ms James], nor from perusal of information provided to me that would suggest that she would be incapable of caring for her child or be of a danger to her child’s health and welfare. However I think it is likely that she will continue to have a negative attitude to her partner, [Mr Wendall] and that she will require considerable support in accepting his rights to have contact with their child.”

54. I also directed on the 25 August 1999 that the Child Representative obtain a medical report from a specialist medical practitioner nominated by the Medical Superintendent of the Royal Adelaide Hospital as to the father’s health status generally, the prognosis and, if possible, a prediction of his longevity. The father did not attend on the appointed day.

55. In November 1999 the parties and K were interviewed and observed by Ms U, Clinical Psychologist, who provided a report dated 3 December 1999.

56. The trial proceeded for 15 days in December 1999 and January 2000. The mother appeared in person. She had the assistance of a solicitor in the preparation of the Order 30 affidavits and an outline of case document. The father and the Child Representative appeared by counsel. Written submissions were received from the mother and from counsel for the father and the Child Representative.

57. On 10 February 2000 I heard brief oral submissions in support of the written submissions. During the course of that hearing there was discussion whether there existed any evidence of a notification to the appropriate authorities of the father’s HIV status prior to 15 October 1997. I offered the mother an opportunity to issue subpoenae to the testing laboratories. She declined to accept the offer.

58. Within a few days of 10 February 2000 the mother contacted the Court with a request that the matter be re-listed for further consideration on the issue of subpoenae. On 9 March 2000 the mother filed a Form 8 application by which she sought 21 different orders including the following:

“Paragraph 12
That the Court allow the mother to subpoena the medical testing authorities in order to ascertain the first date that the father was diagnosed as HIV positive.”

59. On 17 March 2000 I made the following orders:

“1.Leave to the mother to re-open her case for the specific purpose only of issuing a subpoena to the medical testing authorities of SA.

2.Leave to the mother to issue subpoena by 4.00 pm on Wednesday 22 March 2000 directed to production of documents recording the date or (sic) first report of the HIV status of the father [Mr Wendall].

60. The mother’s Form 8 was otherwise dismissed.

61. On 10 April 2000 the parties inspected the documents produced pursuant to two of the four subpoenae issued by the mother. The documents disclosed no record of any testing of the father for HIV prior to October 1997. I noted that no documents were produced pursuant to the subpoenas to … Pathology and … Laboratory, they having no records.

Relevant Principles

62. In this case, as is in all cases, in which parenting orders are sought I must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests I must consider the matters set out in section 68F(2) Family Law Act. I am also required to have regard to the object of Part VII of the Family Law Act which is to ensure that children receive adequate and proper parenting to help them achieve full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. I must also have regard to the principles underlying this object.

63. In B and B Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said:

“9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A Court which is determining issues under Pt VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s.68F(2) and those contained in s.60B.
9.53The wording of s.68F(2) makes that clear - the Court “must consider” the various matters set out in (a) - (l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by para (1) “any other fact or circumstance that the Court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Pt VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in subs (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in subs (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.
9.55Ultimately it is a question of applying in a common sense way the individual sections so as to achieve the best interests of the children in the particular case.”

Evidence

64. I now turn to the evidence. I had before me the following documents.

For the father:

Amended Form 7A filed 28 June 1999;
Affidavits of the father sworn on 6 February 1998, 21 May 1998, 8 July 1998, 4 December 1998, 19 January 1999, 6 May 1999, 30 August 1999 and his Order 30 affidavit sworn 2 December 1999;
Affidavit of Ms M sworn 27 May 1999 and her Order 30 affidavit sworn 3 December 1999;
Order 30 affidavit of J sworn 3 December 1999;
Outline of Case document.

For the mother:

Amended Form 7A filed 3 December 1999;
Order 30 affidavit of Mr D sworn 1 December 1999;
Order 30 affidavit of Mrs D sworn 1 December 1999;
Order 30 affidavit of T James sworn 3 December 1999;
Order 30 affidavit of E James sworn 3 December 1999;
Order 30 affidavit of the mother sworn 7 December 1999;
Outline of case document.
In the course of the trial, by consent, three earlier affidavits sworn by the mother on 2 February 1998, 3 July 1998 and 10 November 1998 were received by me.

For the Child Representative

·    Affidavit of [The Child’s Representative] sworn 22 December 1998 to which was annexed the report of Mr S dated 21 December 1998;
·    Affidavit of [The Child’s Representative] sworn 7 May 1999 to which was annexed the report of Mr S dated 7 May 1999;
·    Affidavit of [The Child’s Representative] sworn 27 May 1999 to which was annexed a photocopy of the affidavit of Ms V sworn 27 May 1999;
·    Affidavit of [The Child’s Representative] sworn 27 October 1999 to which was annexed the report of Dr L, Psychiatrist, dated 6 October 1999;
·    Affidavit of [The Child’s Representative] sworn 6 December 1999 to which was annexed a report from Professor O dated 24 November 1999;
·    Affidavit of [The Child’s Representative] sworn 6 December 1999 to which was annexed the report of Ms U, dated 1 December 1999;
·    Book of medical records relating to the father prepared by [The Child’s Representative].

65. I now refer to some of the evidence given in the proceedings. I will not recite the evidence as a whole, but I say that in arriving at the conclusions I have reached I have considered all of the evidence and the evidence as a totality.

Mr Wendall – the father

66. The father gave evidence that he had a hard life as a child. His father was a harsh disciplinarian. He left school and left home at the age of 13. He has some difficulty reading. He had several jobs and completed part of the training to be a plumber.

67. The father said that he lives in a three-bedroomed house at … [Town I]. [Town I] is a southern suburb of Adelaide about … kilometres from the GPO. The father owns the house in which he has lived for about 24 years. There is a mortgage of $56,000 on the house. He increased the mortgage to pay out his former wife, H, the mother of his daughter C.

68. The house has a swimming pool fenced off from the street, but not from the house. The father gave evidence that the doors from the house to the pool area are locked and the locks are at a height of some 6 feet, which K cannot reach. She is allowed to ride her bicycle in the street and she wears a bicycle helmet.

69. The child has her own room with bed and furniture, a wardrobe and drawers for her clothes and toys. B Wendall, now 11, stays with the father almost every weekend. B has his own room.

70. The father is a drainage contractor. Prior to October 1997 he worked full time. He said he now works on average one day per week and earns about $100 per week. In addition he receives a pension. He said that he has taken K to a work site on only two occasions for no more than two hours at a time during weekends and that he supervised her. On the days that he now works the child is care for by a daycare giver when she is not at kindergarten. He said he has not taken K to a work site during the working week.

71. The father gave evidence that he owns a Rottweiler dog that is of peaceful disposition. The Rottweiler lives outside the house and is not allowed inside the house. The family cat also lives outside the house.

72. The child’s current regime involves four sessions of kindergarten, two in the morning and two in the afternoon. The child is at home for lunch and the father said that he prepares a sandwich and she also has a muesli bar. As to his cooking skills the father said, he has pretty good cooking skills, “better than each of his three partners”. The child helps with the dishes. She has a bath about 7.00 pm and speaks to the mother by telephone each evening. She goes to bed at 8.00 pm.

73. The father gave evidence that K is enrolled at the [Town I] East Primary School to commence in term 3 this year, that is, later this month. He said that both B and C had attended this school.

74. The father said that he had agreed to the orders made by consent in 1997 because at that stage he was continuing his casual relationship with the mother and he had no difficulties having regular contact with K. After his diagnosis as being HIV positive in 1997, the mother refused contact. Early in 1998 the father had applied for better contact with the child than he had previously been having. He changed his application to seek residence after the mother absconded in 1999.

75. The father said that he would continue to drive the child to the mother’s home to enable her to have contact with the child on weekends. He said that supervision was necessary in his view because of what the mother might say to the child as her attitude had not changed towards him. He was also fearful that she might abscond. He said that he would reconsider the position regarding supervision in 12 months time if all went well in the meantime.

76. As to how he acquired the HIV virus, the father said he believed he acquired it from the blood transfusions he had in 1987 following the motor vehicle accident.

77. In cross-examination the mother put to the father a number of specific allegations about his acquiring the HIV virus. The father denied that he had ever injected drugs into himself. The father denied that he had at any time had homosexual relationships. The father denied that he had had any sexual experiences in gaol. The large file of …Medical Centre notes was before me as exhibit CR4. I read through the notes. There are two sets of entries dated 10/10 (1997) which follow each other. They appear to be in the same handwriting. In the first set of entries there is the notation “denies same sex contact”. In the second set of entries there is the notation “Admits to same sex contact”. The husband was not cross-examined about the entries. I do not know why. He not having been cross-examined about the entries I make no finding as to his credit on this issue.

78. The mother put a number of other allegations directly to the father in cross-examination. The father said that he had at no time been charged with rape. The father denied that he had been abused by his own father. The father said that there was no violence in his relationship with any of his former partners, H Wendall, J or Ms James. He denied that he had at any time picked up prostitutes. He denied that B had at any time slept in his bed. He denied that B had left his house in the early hours of the morning to avoid sexual encounters. He said B had at no time appeared to be frightened of him. He said he had never had a shower with K. He denied being a paedophile, in the strongest of terms.

79. The father gave evidence of the good relationships he had with his previous partners, H Wendall and J. C Wendall lived with the father from the age of about 16. This situation was negotiated between H Wendall, the mother of C, the child and the father. As to J, the father said he sees her weekly when he collects B, he having had contact with B since he was about 12 months old. The father said there were no Family Court proceedings with respect to either C or B. He did not pay maintenance for C, although he supported her once she came to live with him until she started work. He did pay $20 per week for B and in addition bought him clothing and footwear.

80. The father gave evidence of his good relationship with his nieces Ms M and Ms Z, children of his sister …. Ms M lived near the father for some years, but she had moved to the northern suburbs in 1999. He said that he sees her and her five children most weekends after he has picked up B. They have a family barbecue together about once a month. The child K is a good friend of Ms M’s daughter. As to Ms Z, the father says that she lives at [Town T] and has a two-year-old child. He has rather less contact with Ms Z.

81. As to K, she according to the father, has made friends in the neighbourhood and at kindergarten. She mainly sees these young friends on the weekend.

82. As to his health, the father said that prior to October 1997, his health was normal. In that year he had suffered from boils, and then pneumonia which resulted in his hospitalisation. The father said it was a huge emotional experience to discover he was HIV positive in October 1997. He said he cried. He said he felt angry and depressed. He told the mother of his diagnosis a few days after it was made. He was prescribed drugs and he has taken drugs since October 1997. There was mention in the medical notes of his poor compliance with the medication regime. The father said that he did not recall that being discussed. He said he clearly understood the importance of his taking medication and he offered to give an undertaking to the Court to that effect. His expectation is that he will live for 10 to 12 years which would mean that K would be 14 to 16 years old at his death.

83. The father gave evidence about the side effects of his condition and the drugs he takes. He suffers from peripheral neuropathy in his feet and legs. He has poor circulation, pain and cramps in his legs. It is difficult for him to get going in the morning. At some point he has also suffered from loss of sensation and pins and needles in his fingers, but that is not now a problem. He has emphysema. He does not think he suffers from AIDS related dementia.

84. The father gave evidence of his being completely aware of the need for a strict hygiene regime to prevent his blood coming into contact with some one else’s blood. His evidence was that he keeps his shaving gear and toothbrush out of reach of the child. They do not share crockery and cutlery. The child has her own toothbrush and mug. The father said he was aware that he must comply strictly with the medical advice given to him. He acknowledged that he does not like giving blood.

85. The father said he was hospitalised for five days in October 1999 with pneumonia. Professor O had reduced his daily dosage of Bactrim to see if the peripheral neuropathy improved. It did not and his general condition had deteriorated. The dosage had been increased again. During his hospitalisation the father said K had stayed with his nieces Ms M and Ms Z. Were he to be hospitalised again, the father’s evidence was that his family would assist in the care of K. In the longer term were he to become too ill to care for himself, the father said his daughter C and his niece Ms M would care for him.

86. The father’s evidence was that all of his family knew that he was HIV positive. He had not told all of his friends only those he thought needed to know about his condition. The mother, K, J and B had all undertaken blood tests and were HIV negative. The father’s evidence was that he did not consider his health would prevent him from caring properly for K. He said he could run 100 yards.

87. One of the issues raised by the mother was that on one occasion in May 1998 the father had licked the child’s ice cream. The father explained that the ice cream was dripping everywhere and admitted that he did lick the ice cream. He said that he was not then aware of the possible consequences of so doing, but he is now aware.

88. The mother alleged that in about September 1998, during a contact visit, the child pinched her hand on a swing and the father licked the wound. He denied having done so. The mother was sufficiently concerned to have further blood tests done on the child. She did say however that she was not sure if the cut was bleeding. The mother’s evidence was that the father suffered from bleeding gums at the relevant time.

89. The mother alleged that the father had been violent towards her during their relationship, which the father denied. In particular the mother alleged that the father had spat on her deliberately on one occasion during 1998. The father said the spitting was not deliberate. He said he had new dentures and was having difficulty managing them. Whilst it was no doubt a most unpleasant experience for the mother I am not able to make a finding that this was a deliberate act by the father.

90. The mother alleged that the child has become undisciplined and rude since she has lived with the father. She said K often appears grubby and unkempt for contact. The father’s evidence in that the child was undisciplined and rude when she came into his care in April 1999, but that situation has changed. The father said the child had a bath every day and wore clean clothes. His explanation for her appearance is that she might have been playing with the dog before contact began.

91. As to the child’s health the father’s evidence is that her health is good and that she has recently had a check-up through her kindergarten. In particular, he says that the child has never shown any signs of allergies as claimed by the mother. At some point the child is reported as having said to her mother “Dad takes out the red Froot Loops” which would tend to suggest that he is aware of the possible problems associated with red food colouring. He said that the child has been diagnosed has having asthma, which condition is being monitored. According to the father the child has not had an asthma attack whilst in his care. The child has a puffer should she require medication and she had in fact used it when coughing at night shortly before the trial.

92. It would seem that the only real health problem K has had was a hairline fracture of her skull sustained when she fell or was pushed off a trampoline in Western Australia, about three weeks before she went into her father’s care in April 1999. This was the mother’s evidence, but not supported by a medical report.

93. The father’s hobby is streetcar racing. His evidence is that he takes K to the racetrack one evening every second or third weekend. He agreed it was a very noisy place. He said the child wears earmuffs, the sort that are secured over the top of her head.

94. The father failed to comply with two Court orders to attend for medical examinations, the first order being dated February 1998 and the second in November 1999. He said he mistook the date on both occasions, attending a day late each time. I regard this as less than satisfactory conduct by the father. However, having heard the evidence of Professor O and of Dr J, I am satisfied that there is sufficient evidence before the Court about the father’s health.

95. The father presented as a quiet man of not great intellectual capacity. He exhibited much love for his daughter. In my view he appeared to be acting in what he perceives as her best interests. I was impressed by his evidence. I do not perceive that he was motivated by any desire to exact revenge from the mother because of her attitude to him and her conduct in absconding for three and a half months last year. I find that K is well cared for by the father and that he is meeting her physical and emotional needs.

[Ms James] – the mother

96. The mother gave evidence in December 1999 that she was living in public housing at [Town N], in a three-bedroomed freestanding house. She said the house was on the market for sale and she expected to be re-housed in a South Australian Housing Trust rental house in January 2000. That event occurred, and at the conclusion of the trial the mother was living in a house at [Town N] which she rents from the South Australian Housing Trust.

97. Following the father’s diagnosis as being HIV positive in October 1997 and the mother and K being testing and found to be HIV negative, the mother continued to worry about the possibility of contacting the virus. She said it was for this reason and because she regarded the father as irresponsible that she declined contact.

98. Early in 1998 the father commenced proceedings by way of Form 8 seeking contact. The mother was at that point represented by a solicitor. In her affidavit filed in February 1998 the mother expressed concern that K may contract AIDS and in particular, because the father had uncovered boils on his arms and hands. In that affidavit the mother said “the father knew he had AIDS for an extended time and failed to tell her”. In engaging in an ongoing sexual relationship the father exposed her to the risk of contacting the virus. The mother expressed the view that the father may have got AIDS via drug abuse or homosexual activity. She claimed in that affidavit that the father had admitted to hiring prostitutes regularly. The mother said that the child will be affected emotionally by seeing her father’s health deteriorate. The mother deposed to the father as acting irresponsibly and in particular, the father gave K whooping cough when the child was only six weeks old, that he had a vicious dog, that he had an unfenced swimming pool and that he kept rifles at home. In February 1998 the father was not paying Child Support.

99. The mother’s next affidavit was sworn on 3 July 1998. This document she prepared herself. Again she referred to the irresponsibility of the father and deposed to the fact that the child needs safety from her irresponsible father. As to the child’s health, the mother said she suffered mild asthma when exposed to food colourings, she will be fine when her father stops giving her these things. The mother went on to say the father had “full blown” AIDS according to a paper he tabled in Court on 6 April 1998, emphysema, poor circulation in hands and feet, two possible sites of lung cancer (he having allegedly showed her the results of a CT scan in August 1997) and cardiomyopathy brought on by his emphysema, and in particular, P.C.P. pneumonia and AIDS defining illness which he suffered in October 1997.

The mother deposed to the father being “criminally irresponsible and too sick to be in charge of a child”. It was to this affidavit that the mother annexed her 1996 will which included an annexure to the will, setting out some 20 examples of the father’s alleged irresponsibility.

The next affidavit of the mother was prepared by her in person, and was dated the 10 November 1998. In paragraph 23 of that affidavit the mother deposed to the needs of K as being:
- to be safe from the threat of catching AIDS from her father
– to not have to see and be psychologically damaged by his violence and aggression
– to not be physically exhausted by access contact
- to have a chance to get over her chronic illness due to stress

The mother deposed to K suffering from stress. She said;
“it manifests itself as chronic boils (eight times so far), coughs, colds, diarrhoea and gastroenteritis. The child will improve when access stops.”

The mother went on to say:
“The father has full-blown AIDS. Is taking steroids which add to already present aggression. The father has many other health problems. The father is extremely aggressive and shows no consideration for anyone’s health or safety. His attitude and violence is extremely distressing for [K].”

The mother deposed further:

“The father is extremely violent. He has nothing to lose as dying of AIDS. No respect for anyone or anything. Is shortly to be charged with assault. His former partners are terrified of him.”

The mother’s reference to a charge of assault relates to the spitting incident. No charge was laid.

The mother’s Order 30 affidavit was sworn on 7 December 1999. The affidavit is some 65 paragraphs in length and the first 54 paragraphs trace the chronology of the proceedings to date. The thrust of the balance of the affidavit was that the mother is concerned about the father’s health conditions preventing him from looking after K properly and as to particular concerns regarding the child’s allergies, the child being at risk on construction sites and the child having become undisciplined and rude and that she appears grubby and unkempt. The mother’s Order 30 affidavit contained no statements as to the father being a paedophile, or to his having abused his children.

In cross-examination the mother said that she first formed the view that the father is a paedophile when he asked to bath K on his own. When asked the reason for her view, the mother said, “a little voice said things to her. The voice said to be watchful”. The mother also said, “that the father was the only man she had felt uncomfortable with with [K]”. And the reason for this statement she said was “because he wanted to bath the child on his own”. It was in this context that the mother said “I believe it is possible he has abused [K]”.

The mother expressed concern that the father was showering with K. This concern arose following a telephone conversation between the mother and the child, when the mother enquired if K wore a shower-cap. The child allegedly said, “my Daddy washes my hair”. The mother then asked, “does Daddy shower with you”, the telephone line then went dead. The mother was concerned because the shower alcove was very small. She did not ask the father if he showered with K.

The mother said that J told her she caught the father in an embarrassing position with his daughter C. The mother alleged that Ms Hall had used the expression “in an embrace which made her feel uncomfortable”. The mother took it from the way in which Ms J had said that phrase, that she meant that the father was having a sexual relationship with his daughter C.

The mother went on to say that everyone who knows the father believes he is a paedophile, they being her son, her daughter, her nephew Mr P and Mr and Mrs D.

The mother’s evidence was that she will always believe him to be a paedophile until he undergoes a psychological/psychiatric assessment. She agreed that she had not got proof and again referred to her “little voice”. The mother agreed that the child would be hurt if her relationship with her father was stopped. Were she ordered to do so she would give 48 hours contact to him. She said that she would not question K about showering with her father and would not cross-examine the child at all. She held to her view that supervised contact was desirable. When asked whether she would be able to speak positively about the father in front of the child, the mother paused and said she could say, “he’s a good cook”.

The mother was adamant that she will not abscond again. She said that she realises that she would be in a much worse position if she absconded again, in that she might never see K and might end up in gaol.

The mother expressed the view that she believes the father will die soon. She consulted a clairvoyant in early 1999 in Western Australia and the clairvoyant told her this. The mother kept a series of diary notes towards the end of 1998. The last note that year was in the following terms, “mother will never be free”.

The mother said that she will not disclose her address in [Town N] because the father stalked her by driving past her house early in 1998. She agreed that this was not in her Order 30 affidavit. She also expressed fear of the father’s violence towards her.

In November 1997 not long after the father was diagnosed as suffering from AIDS the mother agreed that she had written to the father offering contact to K if he would pay her $10,000 for K’s education. She said it was “a test”. He didn’t pay the money. He failed the test. She wrote to see what his reaction would be. She described it as a test to prove that he is irresponsible.

The mother went on to say that she believed the father is inflicted with THE WENDALL CURSE. The reason for this is because the father was abused as a child and will abuse his own children. The mother expressed the view that it follows down from generation to generation. The mother said, “I can’t help worrying that he is sexually abusing her because she didn’t want to go with him (to go home at the end of a period of contact last year)”. The mother said that B has been sexually abused by his father and that B may abuse K.

In September 1999 the mother said that she declined to give the father K’s health book, because it might enable him to look better at trial than he was. In response to a question from the Child Representative, Mr Pickhaver, the mother said, “that he would get to know more about K than he really did”. In my view this was a clear instance of the mother not focussing on the child, but on herself.

When questioned by the Child Representative about contact, the mother said that if she had an order for residence the father would have alternate weekend contact. However, if he had residence she would want to have contact every weekend. When asked why, the mother said, “I think I deserve it”. I am of the view that this is again an instance of the mother focussing on her needs, rather than the needs of the child.

In cross-examination by Mr McQuade, for the father, the mother listed 49 reasons (together with her concern re the father’s paedophilia) as to why contact needed to be supervised. I noted the mother’s reasons as follows:

I.Forcibly removing her from mother.
II.No bike helmet observed by the mother on 16 May 1999.
III.Concerns about her being on building sites.
IV.Father does not put sunscreen on K. The mother has seen B sunburned and blistered. He has had a mole removed already.
V.K will be injured by the tractor.
VI.B allowed to drive the tractor.
VII.Ears full of dirt for a week, black dirt from [Town X] building site 27 September 1999.
VIII.Teeth not cleaned often – hate her to lose them like her father.
IX.One day K smelled – hair not done.
X.Often complained of no breakfast.
XI.Allergic to red colouring, child got Urticaria 1997 as a result of allergy to yellow colouring 20 months after red food colour had asthma 22 April 1999.
XII.15 June 1999 – asthma escalated. 21 June 1999 – no energy – washed out – red medicine for cough - making her worse?
XIII.Whooping cough at aged eight weeks – he gave it to her.
XIV.Child begged to stay with you after contact.
XV.Severe emotional abuse of the child in separation from you.
XVI.Child riding a bicycle within six weeks of hairline fracture.
XVII.Adam calls K a dobber and kicks her.
XVIII.K cried on Fridays during contact. The mother believed because B was coming.
XIX.6 June 1999 – B backhanded K in the car. Father told B to do it round the corner next time. K had to be forced into the car and he (the father) said shut up.
XX.The father very impatient.
XXI.He denied contact which would have upset the child.
XXII.2 July 1999 the day after the appeal the mother came overnight on the train. The child was at Ms M’s house and had to be pulled off the mother. The mother explained to the child she wanted to take her but would be put in gaol. K and the mother in tears.
XXIII.Since then K has not asked to come with you in front of her father – afraid to ask.
XXIV.September 1999 child asked to stay with mother.
XXV.23 August 1999 access at Ms M’s house. Child not afraid to say she wants to stay.
XXVI.9 August 1999 K says she doesn’t love Mr D any more. When questioned why? Because he’s a boy. Child says she doesn’t like Dad very much.
XXVII.August 1999 recurring rash similar to yellow food colour reaction.
XXVIII.K says she sets the table and wipes the dishes.
XXIX.K said father can’t keep up with her.
XXX.When father in hospital not fair to K.
XXXI.Separation anxiety insecure and afraid of people leaving her.
XXXII.Fear father will take out anger on K.
XXXIII.27 August 1999 K showed exercise-induced asthma.
XXXIV.10 September 1999 child pre-occupied with death. I hope the father hasn’t threatened to kill me (the mother) to make her (K) do things.
XXXV.September 1999 child fed biscuits with food colouring.
XXXVI.September 1999 K said she cut her hand on the tractor.
XXXVII.The child stares into space mesmerises herself to go back to father before she goes or when in car seat.
XXXVIII.Father put on K’s seat belt roughly and hurt her. If he would hurt her in front of you what would he do in your absence. Would not accept responsibility would not deliberately hurt her but could happen accidently.
XXXIX.International Raceway too noisy B’s ears not protected.
XL.Father prompts K on the telephone.
XLI.K said that she had a shower now. My Dad washes my hair asked her if she showered with Dad – he hung up.
XLII.24 September 1999 K sore in mouth – on side.
XLIII.K worried about her behaviour upsetting the mother. Shouldn’t worry about minor spills.
XLIV.K says that B swears a lot.
XLV.8 October 1999 child questioned why the mother did not stay in Western Australia.
XLVI.Mother concerned about father picking up prostitutes.
XLVII.Child would never have seen her father naked. Convinced she’s showered with father.
XLVIII.The photograph of K bothered you – a voyeuristic pose in the bath. K gave it to you.
XLIX.K’s reaction to three photographs of mother as a small child. She was very upset at what she thought was a picture of the mother.

The photograph of the child in the bath (XLVIII) was a typical family type photograph of a happy child covered in soapsuds.

These concerns are similar to the concerns the mother expressed in the appendix to her will prepared in 1996. Some of them are reasonably of concern of the mother. However, I am of the view that the majority of the so-called concerns are expressed to discredit the father, rather than to demonstrate real and balanced concern for the welfare of the child.

In cross-examination by Mr McQuade, the mother gave evidence about the circumstances of and the reasons for her leaving South Australia and travelling to Western Australia in January 1999. She said that she decided to run away when the father was given the right to see the child in the presence only of Ms M. It was the mother’s evidence that Ms M was not able to protect the child. The mother felt it was necessary to run away to protect her daughter because no one else was protecting her, and in particular the Family Court of Australia was not protecting her.

It was the Judicial Registrar’s order of 23 December 1998 which made the mother think about running away. After the first two contact periods pursuant to the order of the Judicial Registrar, the contact was to be supervised only by Ms M. To the mother this was the worst option she could think of. She felt her duty to protect K was higher than her duty to obey the Court order.

Even though she went to Western Australia, the mother said she intended to come back to South Australia after the father died and that she had no intention to change her address. At the time she left she thought the father would live only a few months and the move to Western Australia was temporary, like a holiday. That, she said, was the reason why she told the Judicial Registrar she was not intending to change her address.

The mother was aware that the injunction was sought as a result of her telling Mr S what she would do if unsupervised contact were ordered. She was aware that the order was to prevent her from changing her place of residence. She was not represented on 23 December 1998 and she said she did not know the consequences of disobeying the orders. The mother’s evidence was that if she had known what would have happened she would not have done what she did. She then went on to say that she did not think it was a very serious order, which in my view countermands her previous statement.

It was clear from the mother’s evidence under cross-examination that she had planned the move carefully. She said she had her mail redirected by several steps to Bunbury, so that her family did not know where she was. She had arranged for her daughter E to send her a money order after E had withdrawn her pension from her bank account. She kept in touch with E by telephone to find out what was going on in Court.

The mother was questioned about the annexure to the father’s Order 30 affidavit being the one page of notes in longhand to Mr Hemsley (Child Representative) about the potential contact supervisors from her church in [Town N] being cross-examined in Court. The second page printed in capital letters was not intended for Mr Hemsley according to the mother. It happened to be on the back of the piece of paper she wrote the longhand notes in.

“For Court on 25-10-99. James-Wendall
Will you please ask the Judge how much longer my sentence runs for? No-one has told me how long I will be punished for trying to protect [K] (surely I could have robbed a bank and got a lighter sentence than this six months! You only get 5 years for murder these days!). If she cant (sic) or wont (sic) answer that question could you ask if I can have an alternative punishment? I would submit to 50 lashes or have a finger cut off – anything that would satisfy the Judge that I have paid sufficiently for my ‘crime’. God help all Australians – in Australia it is a crime to protect your child from a paedophile – and God knows that in this country no-one else will! Not the child abuse people and not the people who know but don’t speak up! God help [K]. I just want my [K] back.
Why not tell the Judge the reason why I won’t run away again? Because [K] has already lost her innocence and her childhood. Running away now won’t do any good. It is too late for [K]. Too late.
[K]’s sentence by this Court lasts for the rest of her life! How can anyone be so cruel to a little girl? She doesn’t deserve this”

The mother was asked whether she disagreed with any part of the letter. She did not answer directly. Her answer was that she still believes she is being punished for protecting her child from a paedophile. That letter was dated 25 October 1999.

The mother did not call evidence to substantiate the allegation that the father is a paedophile. The evidence of her children and Mr and Mrs D indicates that they believe what the mother says, but only on the basis of statements she has made to them. The mother did not call or subpoena a former neighbour who she said would give evidence that B left home in the early hours of the morning to avoid being sexually abused by the father. She did not subpoena Mr P whom she said had told her he had seen the father driving along Hindley Street ‘picking up prostitutes’ whilst B was in the car. He had told her the father was known to frequent well-known homosexual beats. The mother used subpoenae to secure the attendance of other witnesses. I conclude that the evidence of this neighbour and of Mr P would not have assisted the mother’s case.

The mother gave evidence that she had no contact with K for about six weeks towards the end of last year. The father offered to have his daughter C, his former partner J or his niece Ms M to supervise contact. The mother deemed them not suitable because she thought she would be disadvantaged because the proposed supervisors would lie about what had happened on contact. The mother said she did not want to put any one forward from the church as a supervisor because of the way in which they might be cross-examined before they took on the role of supervision.

In August 1999 the mother visited the child’s kindergarten. In cross-examination by Mr McQuade the mother said that she offered the kindergarten’s Director some Nutrigrain, so that K could have breakfast. She was told that K had had breakfast. The mother said the Director of the kindergarten described Mr Wendall as a lovely man who was very affectionate to the child and vice-versa.

In the August 1999 visit the mother asked the Director if she had noticed a change in K’s behaviour, but she said she had not done so. In November 1999 on a Monday, the mother attended at the kindergarten again. She said she did not expect to see K because K had not attended on Mondays for some months because of contact. The mother was surprised to see the child. The mother said she didn’t know what effect her appearance had had on K, but she observed the child crying as a woman “dragged her away”. The mother said that she did not want to upset the child and she had made an effort to hide in the bushes. The Director of the kindergarten asked her to move on so that K could not see her. Whilst it is understandable that the mother wanted to see the child during the time that she was not having contact, this is, in my view, another instance of the mother putting her own needs first and not thinking about the impact of her actions on the child.

The mother presented as an intelligent woman who loves her daughter dearly. She has brought up two children to adulthood. They are well educated and both are employed. Until April 1999 she had the full-time care of K and the father makes no criticism of her standard of care of the child in South Australia prior to her leaving the state in January 1999. I find that the child was well cared for by the mother prior to January 1999. The mother continuing to make statements that the father is a paedophile which she did throughout her evidence and in her written submissions has, in my view, become an obsession on her part. She acknowledges she does not have proof of his paedophilia and she has called no evidence of his alleged abuse of his children. I find she has continued to make outrageous and unsubstantiated allegations for over a year to try to stop the father seeing K, and in the trial as the main reason she should have residence of her daughter.

Ms Ms V

Ms V is a nurse assistant who lives in [Town Q]. Her evidence was given by video-link. She gave her evidence in a straightforward manner. There was some confusion about her qualifications. She is not a registered nurse. She has been working as a nurse assistant to monitor head injury patients at night.

Ms V advertised for someone to share her accommodation and care for her 10-year-old son while she was at work on night shift four nights a week. The mother answered the advertisement and moved into Ms V’s house.

Ms V confirmed the contents of her affidavit sworn 27 May 1999, which was annexed to the affidavit of the Child Representative, Mr [The Child’s Representative], sworn 27 May 1999.

It is important to remember that Ms V is an independent witness, in fact the only independent non-expert witness. She observed the mother and child for nine days when she Ms V, was not working or sleeping. She overheard the mother on the telephone making statements which contradicted what the mother had told her about their circumstances. She heard the mother screaming before she got into the house on her return from work one morning. She described the mother as almost hysterical a couple of mornings in a row. Ms V checked the mother’s references from [Town C]. She was given a story different from that given by the mother about the circumstances of the move from [Town C] to [Town Q].

Ms V’s evidence was that the way the mother spoke to the child made her think “all was not right”. This combined with the mother’s steps in obtaining a Post Office Box, was the catalyst for her contacting the Family Court. This was not a step the witness had to take, she did so because of her concern for the child.

The witness was so concerned about what the mother had said about the father that she insisted she meet him before he returned to South Australia so she could be satisfied about his relationship with K.

Ms V observed the father and child for much of the day on 23 April 1999 before taking them to the airport to catch the plane back to Adelaide. K had not seen her father since the 3 January 1999. Ms V said that with her father K was openly loving and she initiated affection towards him. Ms V’s observation was that K showed no fear of her father and she showed no reservation in leaving with him.

The contents of Ms V’s affidavit were put to the mother before Ms V was called. The mother scoffed and laughed at the contents of paragraph 17 of the affidavit, but conceded that she was chastising K for something and it was possible that she was ‘yelling’. Ms V’s evidence I accept where it conflicts with that of the mother. Her observations of the mother’s parenting abilities all be they brief, are a small but important aspect of the case because she is the only independent lay witness. Likewise, her very brief observations of the father and the child, then aged 3 years, on a day when the child had not seen her father for nearly three months are similarly important.

Ms M

Ms M is the father’s niece, the daughter of his sister. She has five children aged from 16 to 4 at the date of the trial, including twins who are much the same age as K. She has known the mother for eight to nine years and she deposed to the fact that during the time the parties went out together the mother was treated as a member of the family and “I believe that I got as close to her as I could”. Ms M deposed to the fact that she and the mother were pregnant at the same time together and “we shared many matters that were very personal”.

Ms M’s affidavit sworn 27 May 1999 which was before Dawe J on 31 May 1999 sets out fairly and even-handedly, in my view, Ms M’s attitude to and perceptions of the father and the mother. She shows general concern for and a wish to help the mother. Ms M was well aware of the father’s shortcomings, he having just taken on the role of a full-time parent as against having brief periods of contact in earlier days. Ms M deposed:

“Initially he had the care of a child and tried to treat it as an extended contact situation trying to ensure that she enjoys herself as much as possible. I have spoken to him at length about this and explained that he has to introduce some discipline into the child’s life and I believe that he is now attempting to do this.”

Following her initial shock at the diagnosis of her Uncle’s condition, Ms M made enquiries about the HIV virus of her General Practitioner and at a library. Her evidence was that she had no hesitation in allowing her children to continue a strong relationship with the father. She said that had she seen anything of the allegations of paedophilia or sexual deviation as alleged by the mother against the father, she would have stopped her children from seeing the father. Ms M has twin children of much the same age as K. She gave evidence to the effect that within a few days of the trial she planned to move back to the Southern area of Adelaide and would live near to the father. I have no doubt that he would seek out her help and she to offer hers to him should he need it.

In her Order 30 affidavit sworn 3 December 1999, Ms M again took an even-handed approach to the father and the mother. Between the time the two affidavits were sworn Ms M had offered to assist with supervision of contact, but had been rejected by the mother. In the second affidavit Ms M said:

“I consider that he has responded well. His care of [K] continues to improve. Overall I have no concerns about [Mr Wendall]’s care of [K]. He is an excellent cook and manages her diet very well. His home is always clean and so is [K]. There are points about [Mr Wendall]’s care of [K] on which I disagree. In particular, [Mr Wendall] provides very well for [K]’s emotional needs. [K] and [Mr Wendall] have easy going and obvious affectionate relationship. [K] is always saying ‘my Daddy’ this and ‘my Daddy’ that. She will often rush up to [Mr Wendall] and tell him how much she loves him.”

Ms M was cross-examined about two telephone conversations she had with the mother. I am not sure which conversation occurred first in time. On one occasion Ms M telephoned the mother and the child answered the telephone. Ms M spoke to K for some time and then the child left the telephone off the hook whilst she went to fetch her mother. It would seem that the mother did not realise that Ms M was telephoning and Ms M overheard the mother coming into the room in a loud and aggressive manner. She heard the mother swear at the child. K’s response could not be heard, but to Ms M it sounded as if she was scared. Ms M said that suddenly the mother’s tone and manner changed when she realised that there was some one on the other end of the line. It was not clear to me when this telephone conversation occurred.

The second telephone conversation occurred some short time after the father was diagnosed as being HIV positive. The mother telephoned Ms M at a time when the father was present. According to Ms M the mother said words to the effect “guess what, your Uncle’s got AIDS”. The mother then questioned Ms M as to how, why and what had happened. Ms M said that her response was “it doesn’t matter how he got it, prostitutes, needles, the fact is that it is a tragedy”. The mother gave evidence that Ms M had told her the father had been with prostitutes and the mother had grasped this as one of the possible sources of infection. I accept Ms M’s version of this conversation and I reject the mother’s evidence that Ms M told her the father went with prostitutes.

Overall I was most impressed with Ms M’s evidence. I accept the contents of both of her affidavits where they conflict with the evidence of the mother. I have no doubt she will be an important person in the life of the father and the child and that she has the best interests of K at heart. I find that Ms M is a positive influence on the father and the child and that she has a good relationship with the child.

Ms J

Ms J is a former partner of the father. She and the father had a relationship from about 1983 to 1992. They did not live together, but maintained separate households. There is one child born of the relationship, B, born 22 December 1987. B lives with Ms J during the week and with the father most weekends. This has been the arrangement for a very long time. Ms J is satisfied that the father can care properly for B, notwithstanding there have been occasional incidents where the child had been sunburned whilst in the father’s care. As to the allegations that the father is a paedophile, that he is an abuser of children and irresponsible in the care of the children, Ms J said, “I just don’t believe it”. She said that the history of her relationship with the father was that whilst they had a few arguments he was never violent to her, he never threatened her life, she never felt frightened and she had never seen him be violent.

The evidence of Ms J was that she does not know that the father hires prostitutes. She does not know that he is bi-sexual. She does not know that he is homosexual. She had no recollection of telling the mother that she had seen the father and his daughter C “in a clinch”. She had no recollection of seeing C and the father in “in a clinch”. Ms J was quite clear that she does not believe that there is or has been an incestuous relationship between the father and C, or the father and B.
After the father’s diagnosis, Ms J and B had blood tests and they too tested negative to the HIV virus.

Ms J has been present on a few occasions during contact with leave of the Court by the order of 8 July 1998. She recounted that she had heard the child K say to her father during a contact period “my Mum says you’ve got AIDS and you will kill me”. Ms J had observed changes in the child since she went to live with her father in April 1999. She described her as being more relaxed and more reactive to things happening in her life at kindergarten and at home. Ms J concluded by saying she did not think it was a good idea for her to be a supervisor because of the mother’s attitude to her.

Ms J presented as a straightforward and reliable woman, supportive of the father in his relationship with their son and with K. Where the evidence of the mother conflicts with the evidence of Ms J I prefer the evidence of Ms J.

Mr T James

Mr James is the mother’s 30-year-old son. He lived with the mother, the child and the boarder in the household at [Town D]from October 1994 to mid 1995. He had seen K once in 1999 on the occasion of the child’s birthday when he had been made welcome at the father’s house. His evidence was that his mother took good care of K.

He was aware of the mother’s intention to leave South Australia. He “trusted her judgment” and did not attempt to dissuade her from leaving the State. As he said “he did not want to get involved”.

Mr James had had little contact with his mother prior to the trial because he had no car and she lives at [Town N]. He offered to have the mother and the child stay with him in Adelaide so that she could take contact. As he has no car and no need of one it seems unlikely that he would be able to assist with contact taking place in [Town N].

Ms E James

Ms James is the mother’s 23 year old daughter who lived in Port Augusta for about 2 years, but had prior to the trial, returned to live in Adelaide. She lived with the mother and the father for about six months in 1993 before moving to other accommodation nearer her High School. She recalled arguments between the mother and the father and of the father screaming at the mother and herself. Her evidence was that the father once threatened her with a saucepan. She recalled that the father screamed at her one night to keep her awake before a horse show. Ms James said that the father made no sexual advances to her. When she was asked whether she shared her mother’s fears about the father, she said that she had seen nothing to suggest that the father was a paedophile.

Ms James acknowledged that between January and April 1999 she was supportive of her mother. She said she did so because if her mother thought the situation was so serious that she would give up everything in South Australia, her daughter felt that she should support her. Ms James was clearly actively involved in the mother’s move to Western Australia and in the arrangements in South Australia whilst the mother was in Western Australia. She redirected mail. She collected money from the mother’s account and sent it on to her by Money Order. She looked after the mother’s house at [Town D]. She paid the bills and later packed up the house and discontinued the services. The letters from E James to her mother which were annexed to the affidavit of the father sworn 27 April 1999 make it perfectly clear how involved she was and how supportive she was of her mother’s actions. When she became embroiled in the Family Court proceedings Ms James was superficially cooperative with the Court, but did not disclose all of the information she knew about her mother’s whereabouts.

9.If the Court forms the view that neither parent can adequately met (sic) [K]’s needs, then Ms M’s offer to provide residence should be considered. Ms Ms was not assessed regarding residence. However, there has been no criticism raised, that I recall, about her parenting ability. She impressed as unbiased with regard to the parents, appreciative that [K] required a relationship with both parents, knowledgeable about child development, and child focussed in her approach. If [K] were residing with Ms M, there would be time for the parents to address their personal issues related to parenting of [K], and improve their ability to property provide for her in the future.”

Paragraph 9 of this opinion is no longer relevant to the proceedings. Ms M is not in a position to provide residence for K. Neither parent seeks that Ms M have residence of K.

During her evidence-in-chief and cross-examination, Ms U made a number of observations about issues which are relevant in this case;

A. Irresponsibility

Ms U was aware that the mother regarded the father as being irresponsible in two areas, in particular, the first being related to his HIV status and the, second, in relation to his lack of ability as a parent particularly as to proper supervision of K.

Ms U acknowledged that the mother’s concern about the father licking the child’s ice-cream when he allegedly had bleeding gums was something that a lay person would be concerned about. As to parental supervision, she expressed the view that that was something that could be addressed.

B. Allegations of paedophilia and sexual abuse

As to sexual abuse, Ms U was aware of the mother’s views. She said:
“I had hoped to explore that further with [K] in a second interview, only in a very general way looking at the worries, safety issues but [K] chose not to cooperate in that interview and there was no time to do any more. There was nothing that raised my concerns because then I would have had to notify the Family and Youths Services, but again it wasn’t a comprehensive assessment specifically regarding sexual abuse”.
As to the mother’s allegation that the father had engaged in paedophilia, Ms U found no indication to suggest further specialist assessment was warranted in this area.

C. The child’s behavioural difficulties

Ms U commented on the observation that the child’s difficulties in the time immediately following her coming into her father’s care, had improved. Ms U said:
“Her behaviour suggests that [Mr Wendall] was meeting her needs in terms of providing her with some security. Otherwise you would expect those behaviours just to escalate and they would have been difficult matters to manage from what I have been told, so that is to his credit”.
As to the period in October/November when the mother was unable to provide a supervisor and contact was disrupted for about 6 weeks until the interviews in Ms U’s rooms, she said:
“[Ms James] has been [K]’s primary parent. They have a lengthy emotional relationship and I am sure that seeing her mother regularly would have been a source of security and some sustenance to her. To have taken that away again would, I expect, disrupt and reflects the importance of that relationship to her. In fact that is added to by my observations of [K] with her mother because that was after a period of 6 weeks of no contact so that was in fact their first meeting and [K] was delighted to see her mother very happy”.

D. The mother’s views about contact with the father

Ms U had questioned the mother about her duty to facilitate contact with the father. Ms U reported that the mother had said to her:
“I would be forced to let him see her. I would still look for evidence for the Family Court to show that he should not be with any children”.
Ms U expressed the view that there were risks for K with either parent. She said at page 14 of her report:
“The primary issue, therefore, is [Ms James]’ attitude towards [Mr Wendall] and whether this is justified. The allegations require legal testing to ascertain whether there is unacceptable risk in the longer term for [K] e.g. re; alleged sexual abuse, risk of infection given alleged irresponsibility”.
[Ms James]’ attitude about [Mr Wendall] impressed as unchanged since 1997. If her belief is found to be understandable, even if unfounded, then [K] should not be deprived of a primary emotional relationship with her mother providing that [Ms James] can allow [K] to have a relationship with her father. If, however, it is found that there is no unacceptable risk to [K] and [Ms James] is unable to demonstrate a change in attitude, then the risk of a change in residence would be that [K] would live in an environment in which her father was portrayed as a paedophile and has no value to her. This would deny [K] an important emotional relationship, given particularly that [Mr Wendall] has a shorter life expectancy than people of a similar age (and [K] has the right to know her father while she can). This aspect would be psychologically abusive of [K], despite the other benefits of resuming her primary relationship with her mother. I note Dr L’s opinion that [Ms James] is likely to continue to have a negative opinion about [Mr Wendall] and would need considerable support to accept the contact.

Ms U went on to say:

“One of the difficult issues that I was weighing up is asking a 4-year-old to emotionally attach to a primary care giver whom we know may die when she is an adolescent. That can happen tomorrow but we actually know that this could happen within that time frame. That is an enormous ask of a child to say. This is our primary carer but they will only be with you until adolescence but on the other side of that which is equally important is that [K] must know both parents and if just information I had before me was that [Mr Wendall] has facilitated contact and [Ms James] has not, for whatever reasons, just bluntly then and what has been put to me this morning I can only say here this is a case that [Ms James] has not facilitated contact since [K] was 9 months old, that does not augur well for the future when she really needs to know her father, providing she is safe with him. So I support weighing up who you are asking [K] to attach to versus who can make sure she has her relationship with both parents. And the latter is important, that she knows both parents”.
Mr McQuade for the father asked Ms U; “Of the two, which do you think is the most important?”. Her reply was:
“All other things being equal, Your Honour, I think the latter. I think if a child is allowed to have a relationship with both parents, [Mr Wendall] and [Ms James]. If [K] is supported to have as good a relationship as she can with both, if and when [Mr Wendall] dies or becomes sick, the issue of residence is going to come up then anyway and it may well be that if she is residing with [Mr Wendall] , he becomes unwell but he has properly supported her relationship with her mother then there could well be a change in residence then but [K] has had a chance to have a proper relationship with her father and remember him. If it is the case that [K] is with [Ms James] and [Ms James]’ attitude which I cannot comment on, but if it is that she does not see there is a proper place for [Mr Wendall] then it means that [K] will be denied a relationship with him and will have taken away from her a relationship she formed with him in the last, you know, eight months and not to properly know him before he dies.”
I think this is the crux of Ms U’s evidence.

Ms U was cross-examined by Mr McQuade about the evidence of Ms V. Ms U’s evidence was that if Ms V's evidence was accepted, it showed a pattern of psychological abuse and an inability to properly meet the emotional needs of K.

Section 68F(2) factors:

In coming to my decision I have regard to the provisions of Sec 68F(2) of the Act insofar as they are relevant. Ultimately, it is a question of applying commonsense to individual paragraphs to the evidence before me:

(a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
K has just turned five and in my view at that age she lacks maturity and a sufficient level of understanding to have any wishes expressed by her taken into account.
(b)The nature of the relationship of the child with each of the child’s parent and with other persons.
Mr S wrote positively about the relationship between the mother and K in both of his reports. He is an expert who is well regarded in this Court. Mr S also observed the mother and child in the Mall about three weeks before the trial. His observations were again that the relationship was normal. Ms U was positive in her remarks about the relationship between the mother and the child.
Both Mr S and Ms U reported on the good relationship between the father and the child. I find that the child has a good relationship with each of her parents individually.
As to the mother’s two adult children, their evidence was that there had been relatively little contact between them and K because E James had lived in [Town B] for two years and T James lived a considerable distance from his mother in Adelaide and of course she has now lived in [Town N] for a year. During the time that Mr and Mrs Cater supervised contact last year it seems that the child had a good relationship with them.
As to the father’s extended family, the evidence was that K had a positive relationship with her older brother B, notwithstanding the minor altercations between them. The evidence of Ms M and the evidence of Ms U about Ms M is to the child having a strong relationship with her. Ms M’s evidence was that K was particularly friendly with her youngest daughter.
(c)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from
(i)     either of his or her parents; or
(ii)     any other child or other person with whom he or she has been living.
I have covered this sub-section under sub-section (b). If the child lives with her mother in [Town N], I am concerned that the mother’s attitude to the father will make it impossible for her to grant unsupervised contact to the father pursuant to Court Orders. Were this to happen the child would be deprived not only of contact with her father but with B and with [Mr Wendall]’s extended family.
(d)The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially effect a child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Since May 1999 the responsibility for transporting the child to the mother in [Town N] has fallen on the father. Whether the child lives in [Town N] or in Adelaide the father will have the burden of being responsible for transport as the mother has no motor vehicle.
(e)     The capacity of each parent or any other person to provide for the needs of the child including emotional and intellectual needs.
The evidence is that both parents are able to care physically for the child. There did not appear to be a great deal of difference between them financially although the father has part-time work averaging one day a week. The mother impressed me as being more intelligent than the father and I think it more likely she will challenge the child’s intellect. The mother has already raised two children who have achieved educationally and both are employed.
The father’s accommodation is stable. He has lived at [Town I] for 20 years. The mother now has South Australian Housing Trust rental accommodation and there is nothing before me to suggest that that is other than stable. The mother is a newcomer to the town of [Town N], some … kilometres east of Adelaide. As to the emotional needs of the child, I am of the view that on the evidence the father is likely to meet K’s emotional needs himself and with the support of his extended family. The evidence of the mother’s unswerving negative view of the father creates doubt in my mind that she is able to meet the emotional needs of the child. The evidence of Ms U is to this effect too.

(f) Not applicable.

(g)The need to protect the child from physical or psychological harm caused or may be caused by

being subjected to or abused or exposed to abuse, ill-treatment, violence or other behaviour, or
being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards or may affect another person.

Having heard the mother and read her filed material including the will and annexures prepared in 1996 and the letter to Mr Hemsley of October 1999, I am of the view that the mother is quite unable to see the father other than as an irresponsible person, a child abuser and a paedophile. All of this is in the absence of any evidence of his being a child abuser or a paedophile and in light of my findings about his so-called irresponsibility. I do not doubt that the mother’s views are genuinely held, but they are quite irrational and quite baseless in light of the evidence before the Court. True it is that the mother has not in recent times denigrated the father in the presence of the child, but so powerfully held are her views that I cannot see her being able to restrain herself from denigrating him in K’s presence again. As Ms U said, such behaviour amounts to serious psychological abuse and is likely to cause long-standing problems for the child in future. The father is able to protect the child from physical or psychological harm. This subsection is to me of the greatest significance.

(h)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
In April 1999 the father suddenly had the responsibilities of parenthood thrust upon him. The evidence of Ms M is that he struggled initially but that he has sought advice and I believe that he has demonstrated to the Court his positive attitude to parenting. I find that he has behaved responsibly regarding contact in taking the child to and from [Town N] since May 1999. In addition he has facilitated regular telephone contact between the mother and K.
As to the mother, prior to January 1999 the evidence is that the child was well cared for and that the mother was a responsible parent. There were two isolated pieces of evidence which raised doubts in my mind about the mother’s attitude to the child. The first was Ms M’s evidence about her over hearing the mother speaking in the presence of the child before the mother realised Ms M was on the other end of the telephone. The second was Ms V’s evidence of her observations of the mother and child over nine days in April 1999. I do not make any findings about the mother’s attitude to the child based on these two matters but they did cause me some disquiet.
Between February 1998 and December 1998 the mother was reluctant to facilitate reasonable contact between the child and the father. There is no evidence that the mother is likely to encourage future contact between them.

Any family violence involving the child or a member of the child’s family.

The mother made certain allegations of violence against the father but I am not persuaded that that is an important issue.
(k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In light of the history of this matter I think it is likely that there will be further proceedings in relation to the child, whether she resides with her mother or her father. Were the child to live with her mother I have no doubt that there will be ongoing problems regarding contact because of the mother’s attitude to the father. Were the child to live with the father I have no doubt from his evidence that he will facilitate contact. The evidence was that he was able to negotiate children’s issues satisfactorily with H Wendall regarding C and with J about B without recourse to the Family Court. J confirmed this in regard to B. [Mr Wendall] has facilitated telephone contact since about October last without the need to involve the Family Court.
Were the child to live with her father, in light of the mother’s attitude to the father, I think it more than likely that there will be further proceedings in the Court about the child. To that extent I do not think this subsection is of great importance.

(l) Any other fact or circumstance that the Court thinks is relevant.

(a) the likelihood that the mother will re-abscond.

This was very much at the forefront of the issues before Dawe J in May 1999 when she ordered that the father have interim residence of K. Having heard the mother’s evidence I accept that she now realises the implications for herself of disobeying orders of this Court. I accept that she knows that if she absconds again she is likely to end up in jail and that she may well not see K again for some time. The mother did not persuade me that she had insight into the effect on the child of being separated from her father for three and a half months last year. I am not convinced that the mother will not abscond again but I think the risk has lessened since May 1999.

The risk will be greater if the child resides with the mother and lesser if the child resides with the father. It is not physically possible to supervise residence whereas it is possible to supervise contact. That is, in my view, another reason for the child residing with the father and having contact with the mother.

(b)The issues raised by the mother about the risks to the child in the father’s care.

(i) The risk of the child contracting the HIV virus from the father.
I accept Professor O’s evidence that there is no risk in a normal parent/child relationship whether as a contact parent or as a resident parent. In light of the father’s evidence of his awareness of the need to be vigilant, the risk of accidental blood to blood contact between the father and the child is in my view so small that it does not influence me in granting residence or contact.

(ii)The mother’s belief that the father has sexually abused K and his other children

There is no evidence before the Court that the father has sexually abused any of his children.

(iii)The father’s alleged irresponsibility.

The mother’s allegations date from 1996 when she had her will and the annexure prepared and continued to her evidence in Court when she recited 49 separate instances of his alleged irresponsibility. As to the matters which I regard as serious, such as the wearing of a seatbelt, I accept the father's evidence that whereas in the past he has not worn a seatbelt he now does and the child does. I accept the father’s evidence about the steps he has taken to prevent the child getting to the swimming pool from his house. J’s evidence, when the allegations were put to her in cross-examination, was that she had not seen evidence of the father’s irresponsibility. She had not seen any evidence of the father’s irresponsibility regarding his care of B. Ms M refuted the mother’s allegations of the father’s irresponsibility. The father is clearly on notice having heard the mother’s evidence about the matters which concern her.

(iv)A fourth issue not directly involving the child was the mother’s belief that the father had unprotected sex with the mother when he knew he was HIV positive.

This issue was raised by the mother as justification of her negative attitude to the father. The mother was convinced that the father knew he was HIV positive in August 1997. His evidence is clear. He first learned of his HIV status in hospital in October 1997. The hospital notes confirmed that he was admitted with pneumonia on 5 October 1997 and that suspicions of HIV was raised on 10 October 1997 and blood tests confirmed the diagnosis a few days later. Dr Hi’s evidence was that she was surprised by the diagnosis he had not had HIV symptoms prior to admission. Professor O confirmed the diagnosis was made whilst the father was an inpatient in the ... Medical Centre in October 1997. Dr Holder’s evidence was that there was no suggestion of the father having the HIV whilst he cared for him.

The medical records subpoenaed by the mother disclosed no testing of [Mr Wendall] for the AIDS virus prior to October 1997.

The mother’s belief was not substantiated by evidence before the Court.

(v)The father’s criminal record.

The father has a sizeable criminal record in the main as a young person. He was imprisoned more than once in the 1960’s. Two of the charges are tainted with violence. They occurred more than twenty years ago. The most recent conviction in 1996 involved driving in a manner dangerous and damage to property. No charge of assault were made. Whilst the father’s criminal history is of no credit to him my view is that it is sufficiently far in the past not to be of a concern to the future welfare of K. The mother subpoenaed the father’s criminal records. The authority of Murphy and Smith (1986) FLC 91-740 entitles the parties to inspect the criminal records of the father.

There are several other paragraphs in Sec 68F(2). I do not think they are of relevance in this case. In referring to the various paragraphs of Sec 68F(2) that I have considered I also take into account those matters to which I have earlier referred in this judgment.

Case Law

Counsel for the father referred me to two useful cases. The first is the case of Sampson and Sampson (1977) FLC 90-253. This is an early first instance judgment of Justice Fogarty. His Honour dealt with a case where the mother of a six year old boy was completely unable to accept that the child should have any connection with the husband. Justice Fogarty at page 76,358 said:

“In cases where the attitude of the custodial parent is genuinely but unreasonably held, the relevance, and the only relevance, of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the child. Similarly where the non-custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party, that circumstance may be of such overall advantage to the long term welfare of the child that it may, taken with all the other relevant factors, justify the Court in altering the custodial position.”

This is precisely the situation faced by the Court in this case.

A more recent Full Court case is that of re David (1997) FLC 92-776. This was an appeal to the Full Court against orders that the 6 year old child reside with the father, effectively changing the child’s residence from the mother with whom he had lived for three years. The trial Judge had found substantial evidence of emotional abuse by the mother, including false allegations of sexual abuse made by the mother against the father. In order to protect the child it was necessary to alter the child’s residence and in that case the Full Court confirmed that it is an obligation of a resident parent to comply with an order for contact and to take all reasonable steps to ensure that the child is made available for the purposes of contact. In that case the failure to provide contact, coupled with the mother’s emotional abuse of the child, resulted in a change of residence in effect as the option considered to be in the best interests of the child.

Submissions of the Child Representative

Mr Pickhaver made helpful and balanced submissions on behalf of the child. He put it to the Court very fairly that had the mother been represented there would have been more emphasis on her capabilities as a parent and less emphasis on [Mr Wendall]’s shortcomings. Mr Pickhaver put it to me that the mother’s role prior to the events of January 1999, was very sound, which is reflected in the evidence of Ms U and Mr S. He put it to me that Ms James will give far better value in the issues of education and intellectual endeavour than will [Mr Wendall]. However, as he put it with these plusses comes the mother’s irrational beliefs regarding the father, of her having no ability to recognise his role in the life of the child and no willingness to modify her views. The Child Representative put to me that these matters pose real risks for the child. On the balance of things in what he described as a very difficult case, Mr Pickhaver put it to me that it would be in the best interests of the child that she stay with her father and see her mother regularly, because both have contributions to make on her behalf. He expressed the hope that in time the child can form a positive relationship with her mother, notwithstanding her views.

On the question of supervision, Mr Pickhaver put it to me that at some point the mother will have to be taken on trust. As he said the Court cannot protect the child against the irrational fears of the mother forever. In contrast with Mr Pickhaver’s submissions, Mr McQuade’s submission was that supervision needed to continue indefinitely. I have reservations about the value of supervised contact in the long term, but certainly in the short to medium term I see the need for it in this case until K is old enough and strong enough to stand up to her mother and tackle her if she makes derogatory statements about the father. Mr Pickhaver went on to say that he considered it to be in the best interests of K that there be no overnight contact until the child turned 8 years of age.

In support of the father retaining residence of the child, Mr Pickhaver submitted that he had much more of a family environment to offer the child, than the mother. Whilst the father does not have a traditional family, but more of a family group connected by blood, Mr Pickhaver submitted that this was a stronger and more supportive environment than that offered by the mother. He put it to me that whilst Mr and Mrs D are very genuine people they are geographically remote from the mother, as are her adult children. Mr Pickhaver put it to me that members of the Uniting Church in [Town N] are not a substitute for family members who say, for example, that they would look after K if she went into hospital. Mr Pickhaver supported an injunction to restrain both parents from removing K from South Australia.

Submissions of the father’s counsel

Mr McQuade’s submissions were in line with those of the Child Representative, save that he saw supervision as an ongoing necessity.

Submissions of the mother

Ms James’ submission was that to have no overnight contact with K until she turned eight, would destroy the relationship between mother and daughter. She discounted the value of the father’s family and friends because they ignored the child until she was three. It was difficult to see how the father could have involved the child with his family under the terms of the order for contact which required it to take place in the presence of Ms James and within the perimeter of her property.

Conclusions

As it has been put to me during the course of this long and complex trial, this is a difficult case. K is just five. For the first three and a half years of her life she was well-cared for by her mother. The mother held strong views about the father and when he pursued his application for proper contact to his daughter the mother made the most horrible allegations against him.

In December 1998 the Court made orders for ongoing supervised contact, but which the mother felt did not protect the child. The mother took the child to Western Australia for nearly four months. Once located, the child was brought back to South Australia and handed over to her father. It is difficult to imagine a more dramatic change of circumstances for the child to go from living in the full time care of her mother, with whom she had lived since birth, to going to live full time with her father, with whom she had spent only a few hours at a time and not always on a regular basis.

The mother comes to the Court and continues her allegations of paedophilia and child abuse against the father. The mother adduces no evidence in support of her allegations and I have found that they are baseless.

The father has had to come to terms with two monumental events in his life in the past three years. The first was his diagnosis as being HIV positive and the second was his being suddenly thrust into the role of a full time parent in April 1999. I must weigh up what is in the best interests of the child, whether she should be returned to her mother who has not deviated at all from her negative views of the father which she has expressed since November 1998. The alternative is to leave the child with her father, an inexperienced parent who has a terminal illness.

In my opinion if the child is returned to her mother, K will continue to have reinforced the attitude of the mother towards the father and his family, and there will be in my view no possibility of proper contact if the child is with her mother.

The mother has failed to comply with orders for contact. She has absconded from South Australia, contrary to an injunction of the Court. It might be said that this Court could and would enforce orders for contact, but that would necessarily involve ongoing proceedings in this Court which would be likely to cause stress to K.

There is also the question of the effect on the child of the mother’s negative view of the father. The expert evidence I have heard is to the effect that this will be extremely damaging to the child. K has a right to maintain a relationship and direct contact with both her parents on a regular basis and I am satisfied that if she resides with her father that contact will be maintained and on a regular basis, whereas if she moves back to live with her mother that will just not occur.

The mother, in many respects, has demonstrated that she is a good mother, but has in this area of antipathy to the husband and of holding unfounded and baseless views about him that they outweigh the positives that she can bring into K’s life in the long term.

In my opinion the child will be exposed to emotional risk in the wife’s household. There are risks for her in the father’s household, but I have outlined them and they are minimal.

In my opinion it is in the best interests of K that the father forthwith arrange for her to attend appropriate therapy or counselling and that he speak with a Family Court Counsellor to obtain a referral to the appropriate person.

I am of the view that there should be frequent supervised contact by the mother to K on a daily basis. K will start school later this month which will necessarily cut down the time that the father will be able to spend with her. Nonetheless, I think that for three months K should spend each Sunday with her mother and that thereafter, that she should spend the first, third and fourth Sunday with her mother which will enable her father to spend weekend time with her and for K to see other members of the family. Of necessity the father will be responsible for transport. The mother has declined to disclose her address in [Town N] and if she maintains that position, then handovers will need to continue to be at the [Town N] Uniting Church.

I agree with the submissions of the Child Representative that the child should settle into school properly before there is any question of unsupervised contact. I think there needs to be consultation with a Court Counsellor at the expiration of a year to ascertain the mother’s views about the father. One can only hope that the mother’s views have softened and that contact could thereafter continue on the usual unsupervised basis. I do not agree with the submissions of the Child Representative that the question of overnight contact should be considered when the child turns eight, but in two years time when she turns seven, and in light of the mother’s views then.

The issues which Dawe J identified in her decision on 2 June 1999 on the question of interim residence remain. In the course of this trial the evidence of Ms V and Ms M has been tested. There is before the Court a good deal of evidence about the father as to his present health and prognosis, and as to his ability to care for K. There is evidence that the child has settled with her father. The mother’s position remains unchanged. She maintains with force the beliefs she held in May 1999 that the father is a paedophile and that he has abused his own children. She has not brought before the Court evidence of either matter. They remain her unfounded beliefs. It would not in my view be in the interests of K to return her to her mother whilst her mother maintains these unfounded beliefs about the father. It follows that the child’s best interests will be served by her residing with her father.

I therefore make the following orders:

1. That all previous orders for residence and contact be and each of them are hereby discharged.
2. That the child K born … 1995 reside with the father who shall have responsibility for her day to day care, welfare and development.
3. That the father do give and the mother do have contact with the said child:
(a) each Sunday from 10.00 am until 4.00 pm for a period of three months;
(b)thereafter, on the first, third and fourth Sundays of each month from 10.00 am until 4.00 pm.

4. That it be a condition of this order for contact that it be supervised by an adult who will ensure that the child is returned to the father at the end of each period of contact.
5. That it be a further condition of this order that the father deliver the child to the mother at the [Town N] Uniting Church and collect her therefrom at the commencement and conclusion of each period of contact.
6. That the parties do confer with the Court Counsellor in July 2001 to consider the need for continuation of supervision of contact in light of the mother’s then attitude to the father.
7. That the father forthwith liaise with a Court Counsellor in making arrangements for K to attend appropriate therapy and/or counselling, such therapy and/or counselling to continue for such period of time as in the opinion of the counsellor is in the best interests of the child.
8. That the counsellor who sees the child be provided with a copy of this judgment.
9. That the father and the mother be restrained and an order is made restraining each of them from removing the said child from the State of South Australia.
10. On the application of the Child Representative for costs of Ms U’s report and attendance at Court, I order the parties to pay those costs in equal shares.
11. I give the mother liberty to apply on the question of overnight contact after 12 July 2002.
12. All outstanding applications are dismissed and the proceedings removed from the active pending list.
I certify that this with the preceding 81 pages is a true
copy of the reasons for judgment herein of the
Honourable Justice Robinson

The 14^th day of July 2000

...............................

Associate

WENDALL AND JAMES AD2068/97 14/7/2000
AND CHILD REPRESENTATIVE

ROBINSON J JUDGMENT

CATCHWORDS

CHILDREN - Residence - competing applications for residence - mother appeared in person - father 55 and mother 51 years - parties cohabited for a period of 6 months - one child of the relationship - child 5 years old - father has two children from two relationships - father has had regular contact with those children - father has criminal record - mother has two adult children - mother had day to day care of the child - mother prepared will seeking to exclude the child from any ongoing relationship with the father - consent order on 14/3/97 granting the mother residence and the father contact - father admitted to hospital with pneumonia and diagnosed as HIV positive - mother refused contact - mother absconded with child - recovery order issued on 27/1/99 - child delivered into the care of the father - order on 2/6/99 granting the father interim residence and supervised contact to the mother - family assessment reports - mother believes that the father is a paedophile - mother focusing on her own needs rather than the child's needs - mother listed 49 reasons why the father should only have supervised contact - concerns expressed to discredit the father - mother's allegations of sexual abuse and paedophilia not substantiated - father takes medication for HIV - positive relationship between child and each parent - both parents are able to care physically for the child - father is likely to meet the child's emotional needs - mother unable to see the father as being irresponsible - mother's irrational beliefs regarding the father - no evidence that the mother will facilitate future contact - mother is likely to re-abscond - child exposed to emotional risk in mother's household - order that the child reside with the father - mother to have supervised contact - father to provide transport for contact - child to attend counselling.

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

Murphy and Smith (1986) FLC 91-740
Sampson and Sampson (1977) FLC 90-253
David (1997) FLC 92-776

Family Law Act 1975 (Cth) s68F(2)

[2000] FamCA 963

14 July 2000

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice