Adamec & Donal - [2022] FedCFamC1F 364

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamec & Donal [2022] FedCFamC1F 364

File number(s): ADC 2530 of 2014

Judgment of: MEAD J

Date of judgment: 24 May 2022

Catchwords: FAMILY LAW – PARENTING – Complex and protracted proceedings including a part-heard trial – Where there were initial consent orders made as between the mother and the father on 16 March 2015 – Where the current proceedings began as between the mother and the father – Where the father was removed as a party as a result of non‑participation – Where the paternal grandmother was added as a respondent – Where the maternal grandmother was later added as another respondent – Where the children were exposed to abuse, neglect and family violence in the household of their parents and when in their parents’ respective care post-separation – Where both parties engaged in serious drug use and where the father inflicted serious domestic violence on the mother – Where the mother’s drug use was of significant importance during the course of the proceedings and the trial – Where the children have been residing with the paternal grandmother since 21 June 2018 – Where X in particular now suffers significant mental health and behavioural challenges as a result of his childhood trauma – Where the paternal grandmother facilitates the necessary psychological assistance for X – Where the mother gave birth to twins during the course of the proceedings – Where those children were taken into care by the Department for Child Protection and are under the guardianship of the Minister until they attain the age of 18 years – Where the children the subject of these proceedings are not aware of the existence of their twin siblings – Where the application of the maternal grandmother was resolved by way of consent order on 19 August 2021 – Where there were only five discrete issues remaining for determination as at the time judgment was reserved – Where final orders have previously been made by this Court as to sole parental responsibility and “lives with” arrangements – Where the Court cannot make a finding that it is in the children’s best interest to spend time with the mother at this time – Where the mother is permitted to communicate with the children by way of age and content appropriate letters, cards, gifts and photographs

Legislation: Family Law Act 1975 (Cth) ss 60(B)(1), 60(B)(2), 60CA, 60CC(2), 60CC(3), 61DA, 61DA(1), 61DA(2), 61DA(4)

Division: Division 1 First Instance

Number of paragraphs: 257

Date of hearing: 13-16 July 2020, 12-13 August 2021 and 21 October 2021

Place: Adelaide

Counsel for the Applicant: Ms James

Solicitor for the Applicant: Alex Mandry Legal Group

Counsel for the Respondent: Ms Boyle

Solicitor for the Respondent: Boylan Lawyers

Counsel for the Independent Children's Lawyer: Mr McQuade

The Independent Children's Lawyer: Nicholas Eid Lawyer
ORDERS

ADC 2530 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DONAL
Applicant

AND:
MS ADAMEC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MEAD J

DATE OF ORDER:

24 MAY 2022

UPON NOTING:
A.That paragraph 1 of the order made by consent between the mother and the paternal grandmother on 19 August 2021 providing for the paternal grandmother to have sole parental responsibility for X born in 2011 and Y born in 2014 (save as to the notation thereto) remains in full force and effect.
B.That paragraph 7 of the order of 16 July 2020 providing for X and Y to live with the paternal grandmother remains in full force and effect.
C.That the order made by consent between the paternal grandmother and the maternal grandmother on 19 August 2021 remains in full force and effect.

AND UPON FURTHER NOTING that the paternal grandmother is at liberty to facilitate time spending between X and Y and either of their parents, on terms and conditions determined by her in her sole discretion and/or in consultation with either of the children’s mental health therapists from time to time SAVE AS TO the terms of paragraph 3 hereof.
THE COURT ORDERS THAT:
1.That the mother be at liberty to forward letters, cards, gifts and photographs to X and Y care of the paternal grandmother at reasonable intervals.
2.That any such letters, cards, gifts and photographs be forthwith provided to the said children by the paternal grandmother unless she considers same to be age or subject matter inappropriate, in which case she will advise the mother by email of her decision and the reason for same.
3.That the paternal grandmother ensure that for a period of at least twelve (12) months from the date of this order any time she permits the children X or Y or either of them to spend time with their father such time shall be supervised by a person over the age of 18 years.
4.That the paternal grandmother advise the mother in writing at such time as X and Y have been informed of the existence of their siblings W and Z with the timing of such information to be determined by the paternal grandmother in consultation with an appropriate therapist or therapists upon whom X and/or Y may attend from time to time.
5.That the paternal grandmother advise the mother by SMS text message in the event of either X and/or Y suffering significant ill-health or injury such that they or either of them require specialist medical attention and/or treatment, including the provision of sufficient information regarding that treatment to enable the mother to clearly understand the nature of the illness or injury.
6.That within seven (7) days of receipt by the paternal grandmother of each of X and Y’s semester or term school reports in each year she forward a scanned copy of same to the mother by email.
7.That the paternal grandmother and the mother keep the other of them informed of their current email address at all times.
8.That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamec & Donal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

These reasons relate to issues concerning the parenting arrangements for two children X born in 2011 and Y born in 2014.
The parents of X and Y are Mr Adamec and Ms Donal.
The children’s paternal grandmother is Ms Adamec and their maternal grandmother is Ms B.
On 16 July 2020 when the trial before me was part-heard, an order was made unopposed that X and Y live with the paternal grandmother. The mother had conceded that issue in her Amended Initiating Application filed 2 April 2020.
The trial eventually resumed on 12 August 2021. On 19 August 2021 the Court ordered, with the consent of the mother, that the paternal grandmother have sole parental responsibility for X and Y. A further order was made that day by consent as between the paternal grandmother and the maternal grandmother which finalised the involvement of the maternal grandmother in the proceedings.
As a preamble to the order granting the paternal grandmother sole parental responsibility for the children the Court noted the five issues that the mother and paternal grandmother agreed remained in dispute at the conclusion of the evidence.
These issues were addressed in writing by counsel for each party and the Independent Children's Lawyer, and counsel spoke to the written submissions before judgment was reserved on 21 October 2021. It is those remaining issues to which these reasons are directed. One of these issues arose during the course of the trial. It did not form part of any of the formal applications of either the mother or the paternal grandmother.
Background
I intend to set out the history and progress of the proceedings in this matter at some length in circumstances where they were protracted, somewhat convoluted, and ultimately, at the conclusion of the trial, required the Court to determine only the following issues, namely:
·the process by which the mother’s time should commence with the children X and Y and the process by which any such time should progress thereafter;
·the process by which X and Y are to be informed of the existence of their siblings W and Z;
·the terms of any restriction that the Court should impose on any contact that may be permitted between the children and their father;
·the terms of any injunction that the Court may make with respect to the mother permitting any contact or communication between X and Y and Mr F; and
·any conditions that should attach to the order for sole parental responsibility to be made herein today in favour of the paternal grandmother.[1]
[1] Order made 19 August 2021 – Notations A – E.
Litigation with respect to X and Y commenced on 21 July 2014 when X was two and a half years old and Y under a year old. The parties to that set of proceedings were the children’s parents Mr Adamec and Ms Donal.
On 21 July 2014 the father filed a Notice of Risk with his Initiating Application for parenting orders. In that document he alleged that the mother posed a risk to X and Y as a result of her mental ill-health, her abuse of drugs or alcohol and her serious parental incapacity.
On 25 August 2014, being the first return date of the father’s application, and in the absence of any responding documents from the mother but in circumstances where she was legally represented, the parties entered into extensive interim consent orders providing, inter alia, for:
·the children to live with the mother and spend two out of every three consecutive weekends from Friday afternoon to Sunday afternoon with the father with any overnight time to occur in the home of the paternal grandparents; and
·the parties to be restrained from consuming alcohol to excess when caring for the children, using illegal substances while caring for the children, exposing the children to drug paraphernalia or persons engaging in the sale, supply or use of drugs and abusing, criticising or denigrating the other of them or family members.
The parties attended a Child Dispute Conference on 30 October 2014 during which they both admitted to the family consultant that they had previously used drugs but had “cleaned up” such that their relationship had improved.
At the adjourned hearing on 9 December 2014 both parties were represented by solicitors. The mother had still not filed responding documents as ordered and neither party attended at Court with their legal representatives or provided them with instructions. The matter was adjourned to 16 March 2015.
On that day an extensive raft of final orders were made by consent dealing with parenting issues and property settlement. The parties had lived in a de facto relationship between approximately October 2010 and 2 June 2014. The Court accepted an oral application for settlement of property in circumstances of an extremely limited asset pool. Both parties were legally represented on that day with respect to parenting issues, with the mother appearing on her own behalf with respect to property settlement.
The parenting orders provided for Mr Adamec and Ms Donal to have equal shared parental responsibility for the children and continued the parenting arrangement as provided for in the initial order of 25 August 2014. In addition there were orders regarding special occasion time, telephone communication, interstate and overseas travel, passport arrangements and communication between the parents. The injunctive orders against each of the parties were extensive. Both parties were restrained in the following terms:
·leaving the children unattended;
·smoking within 25 metres of the children, or any of them, or permitting any third party to do so;
·drinking to excess during the time the children are in their care, or permitting any third party to do so;
·taking any drugs, or permitting any third party to do so in the children's presence or twenty-four hours prior to either of them spending time with the children; and
·criticising, or denigrating the other of them, their family or friends in the presence of the children or allowing anyone else to do so.
The current tranche of proceedings commenced on 5 October 2017. The mother filed an Initiating Application seeking to discharge the parenting orders made on 16 March 2015, as well as orders for her to have sole parental responsibility for X and Y and for the children to live with her. On an interim basis she sought that the application be listed urgently and that the father forthwith deliver up the children to her care or, in the alternative, that a Recovery Order issue.
In the Notice of Risk accompanying her application the mother alleged that:
·the children had been exposed to family violence involving numerous police attendances and resulting in the arrest of the father;
·the father abused methamphetamines;
·the father retained the children without her consent; and
·the father had excessively disciplined X causing marks on him.
She further alleged that:
·the children were at risk of physical assault and serious psychological harm and that she had reported her allegations to an external authority, namely the police;
·the father had been arrested on several occasions and charged with aggravated assault;
·the children were at risk from the father because of his mental ill-health, abuse of drugs or alcohol and serious parental incapacity; and
·the children were at risk of ongoing exposure to family violence in the home of the father and his parents, and that his mother suffered mental ill-health.
At the first hearing on 16 October 2017 the Court ordered the immediate delivery up of the children to the mother and a suspension of the children’s time with the father for a period of eighteen days. The matter was adjourned to 18 January 2018.
In the father’s Response filed 22 December 2017 he sought on an interim basis that the children live with him, spend supervised time with the mother and that she undergo drug screen testing, as well as a continuation of the existing injunctive orders. On a final basis he sought equal shared parental responsibility for the children with the mother, that they live with him and spend time with the mother as agreed between the parties or as ordered by the Court.
In the Notice of Risk filed with his Response he alleged the children were at risk in the care of the mother because:
·the children were poorly supervised because of the mother using amphetamines regularly;
·Y had almost put a used syringe in her mouth;
·the mother had been the victim of a home invasion by people who smashed her furniture, stood on her toes and put holes in her walls which would have put the children at risk of harm had they been present during the incident;
·the mother had many different people around her house who used drugs;
·the children were at risk from the mother of serious psychological harm and serious neglect and that he had reported the allegations to the police and child welfare authorities;
·the mother suffered mental ill-health because of her abuse of amphetamines;
·the children often told him they had no food at their mother’s house; and
·the mother was at risk of homelessness because of potentially being told to vacate the property she rented from her own mother.
On 18 January 2018 the Court ordered each party to undergo supervised urine drug analysis testing and that the mother ensure X and Y attended their schools or kindergartens on time each and every day the institutions were operational, other than in the case of significant illness evidenced by a medical certificate. The parties were ordered to attend upon a family consultant for a Child Dispute Conference. The matter was adjourned to 23 April 2018.
The Memorandum to Court following the Child Dispute Conference set out significant risk factors alleged by both parents under the headings of Family Violence, Drug/Alcohol Abuse, Mental Health Issues, Child Safety and Wellbeing and Parenting Relationship. Under the heading of Future Directions Family Consultant N noted inter alia:
·the matter had the hallmarks of potentially protracted and bitter litigation;
·the accounts of both parents gave cause for concern and warranted further investigation; and
·there was significant concern about the wellbeing of the children.
The concerns expressed by the family consultant at that time were prescient.
On 3 April 2018 the father filed an Application in a Case alleging that Y had been sexually assaulted by the mother’s partner Mr F whilst she was in the care of the mother. For that reason, and because of a text message from Mr F to the paternal grandmother that he alleged was threatening, he withheld the children from the mother’s care.
On 23 April 2018 the existing parenting orders of 16 March 2015 were ordered to resume in full force and effect and an Independent Children's Lawyer was ordered. In addition the Court ordered that the mother be restrained from leaving X or Y unsupervised at any time in the presence of Mr F.
The children were returned to the mother’s care by the paternal grandmother in the presence of the police.
On 29 May 2018 an order was made enabling inspection and copying of material that had been provided to the Court by South Australia Police pursuant to a “section 69ZW” order.
At the next hearing on 7 June 2018, by which time the children were separately represented, the Court ordered that during the period of the adjournment until 21 June 2018 X and Y live with the father at his parents’ home and that he be restrained from permitting them to have any contact with the mother. The Court requested a representative of the Minister for Child Protection to attend on the adjourned hearing.
At the time of the hearing the children had been in the care of the father and the paternal grandmother for some days and the mother failed to attend at the hearing or properly instruct her solicitor. There was also increasing concern on the part of child protection authorities and the Court as to the parenting capacity of both the mother and the father.
The Department for Child Protection (“the Department”), by way of its Youth and Family Law Courts Liaison section, provided correspondence to the Court dated 7 June 2018 containing the following information:
…
The department would like to advise the court that child protection concerns are currently being investigation (sic) in relation to this family. These concerns/allegations include: the mother's drug use, the mother's unstable accommodation, domestic violence in the home environment, [X's] behavioural issues, concerns of alleged sexual abuse of [Y] by the mother's boyfriend and the father's drug use.
… It is noted that the mother refused to have [Y] interviewed with Child Protection Services with regards to the sexual allegations and refused to sign a Safety Plan with the department.
The department understands that [X] and [Y] are currently staying with their paternal grandfather (sic) [Ms Adamec] and that the whereabouts [of] [Ms Donal] and her partner are unknown.
…

At the hearing on 21 June 2018 at which time both parents were legally represented, the children were independently represented, and the Minister for Child Protection was represented by Ms C of the Crown Solicitor’s Office, the Court ordered as follows:
1.That with the consent of the paternal grandmother [Ms Adamec] who is present in court today and during the period of the adjournment the children [X] born in 2011 and [Y] born in 2014 live with the paternal grandparents [Ms Adamec] and [X].
2.That paragraph 1 hereof is SUBJECT TO the following condition, namely that during the period of the adjournment the father [Mr Adamec] (sic) be restrained and injunctions are hereby granted retraining him from:
a. living at the home of the paternal grandparents; and
b.spending any unsupervised time whatsoever with the children [Y] and [X].
3.That during the period of the adjournment the children [X] and [Y] spend time with each of their parents supervised by the paternal grandparents at times and on conditions as agreed.
4.That during the period of the adjournment all previous parenting orders made herein be suspended.
5.Directions only adjourned to 4 September 2018 at 9:15am with a request that [Ms C] attend on the adjourned hearing.
On 9 August 2018 the paternal grandmother Ms Adamec filed an Application in a Case. She sought to be joined as the second respondent in the proceedings, for X and Y to live with her and her husband, for her to have sole parental responsibility for them and for them to spend time with each of their parents supervised by her and/or her husband limited to one hour per week until time could be arranged at a children’s contact service.
At the next hearing on 4 September 2018 the Court was advised the Minister for Child Protection did not intend to intervene in the proceedings and was excused from further attendance. Orders were made by consent as between the mother, the paternal grandmother and the Independent Children's Lawyer which, inter alia , provided for:
·the paternal grandmother to be joined to the proceedings as the second respondent;
·X and Y to live with her;
·the children to spend time with the mother supervised by the paternal grandmother for one hour on Saturday each week;
·the mother and paternal grandmother to enrol into a children’s contact service;
·telephone communication between the children and their mother on two occasions per week;
·injunctions against all three parties from denigrating, harassing or abusing the other of them, discussing the proceedings or care arrangements to or in the presence of the children, and consuming any illicit substance in the presence of the children or twenty‑four hours prior to the children spending time with them;
·injunctions against the mother and father restraining them from consuming alcohol in the presence of the children or for twenty-four hours prior to spending time with them;
·an injunction against the paternal grandmother restraining her from consuming alcohol to excess in the presence of the children; and
·the preparation of a family report.
The first report dated 30 November 2018 was prepared by Family Consultant Ms D and was extensive. The recommendations contained in paragraph 132 were:
·the children live with the paternal grandmother;
·the paternal grandmother have sole parental responsibility for the children;
·the mother’s contact with the children be suspended at this time;
·the mother be at liberty to reapply to the Court should she demonstrate sustained and meaningful engagement with services;
·the father spend two hours per week supervised by the paternal grandmother with the children; and
·the paternal grandmother facilitate X, and Y’s should she require it, attendance upon “[L Services]”.
In that family report, and in particular in paragraphs 40 to 55 and 57 to 66, Ms D raised issues of significant concern regarding drug use on the part of both Ms Donal and Mr Adamec, domestic violence inflicted on the mother by the father, and matters going to the capacity of either of the parents to provide for the needs of X and Y, particularly taking into account X’s serious psychological and behavioural issues.
Under the heading Evaluation commencing at paragraph 119 of the report, Ms D expressed concern about the experiences of X and Y in the care of their parents, the effect on the children of the conflict in the family and the impact on the parenting capacity of Ms Donal and Mr Adamec resulting from their drug use. She expressed concern about the children, X in particular, being exposed to drug use in the mother’s home and overall expressed serious concern for the wellbeing of the children at the time of the interviews and assessments.
She expressed a view in paragraph 127 of that report that neither the mother nor the father were in a position to provide care for X and Y at that time. To the contrary, the paternal grandmother was described as being “well-placed to provide them with nurturing and kind care, in a manner that provided stability and boundaries.”
In paragraph 128 of the report she expressed concern about any contact with their mother potentially jeopardising the children’s placement with their paternal grandmother and the stability that they may gain by continuing in her care, and a concern that the mother may, even in a supervised situation, undermine the children’s stability in the care of their paternal grandmother.
At the next hearing on 14 December 2018 the mother initially failed to appear. Towards the end of the hearing she attended as a self-represented litigant. Both the father and the paternal grandmother appeared through their respective solicitors and Mr Eid appeared for the children. The Court ordered inter alia that:
·until further order X and Y live with the paternal grandmother and spend time with each of their parents at times and on conditions as agreed; and
·during the period of the adjournment the paternal grandmother have sole parental responsibility for X and Y.
The matter was adjourned to 27 February 2019 but was subsequently administratively adjourned until 15 April 2019.
In 2019 the mother gave birth to twins named W and Z. The father of the twins was her partner Mr F. She had not disclosed her pregnancy to Ms D at her interview for the family report.
By 15 April 2019 it had become increasingly apparent from evidence filed in the Court, albeit untested, that both parents had serious drug and/or alcohol addictions, there were ongoing concerns about violence on the part of the father, and the parenting capacity of both parents was seriously in question.
It was noted at the hearing on 15 April 2019 that the Department had commenced proceedings in the Youth Court listed for 4.00 pm on 15 April 2019. The Department was seeking a three month Investigation and Assessment Order for W and Z in circumstances where they were in the Neonatal Intensive Care Unit at M Hospital. The Department alleged that they were born premature and affected by the mother’s drug use.
That application and the facts on which it was based had come to the mother’s attention by way of service on her of the application on 9 April 2019. The father, the paternal grandmother and the Independent Children's Lawyer became aware of the issues at the hearing before this Court on 15 April 2019. No changes to the orders specifying the care arrangements for the children were made on that occasion and the matter was further adjourned to 30 July 2019.
On 7 June 2019 the maternal grandmother Ms B filed an Application in a Case seeking inter alia that:
·she be joined to the proceedings as a party;
·the children X and Y spend time with her “on alternate weekends commencing from the conclusion of school on Friday until 6pm on Sunday at 2pm (sic)”; and
·she be at liberty to contact the children via telephone on not less than three occasions during the week.
An order was made on 18 June 2019 in chambers requiring the Independent Children's Lawyer to provide to the Department a copy of the family report of Ms D.
On 23 July 2019 the paternal grandmother filed a Response to the maternal grandmother’s Application in a Case seeking that it be dismissed.
At the next hearing on 30 July 2019 the Court noted the mother’s advice that the twins W and Z had become subject to a three month Care and Protection Order made in the Youth Court in May 2019, that both children were currently in the fulltime care of their paternal grandparents (Mr F’s parents) and that she was spending time with the twins, supervised by the Department, on three occasions per week for a period of one and a half hours.
Ms B was joined as a party to the proceedings as the third respondent and the matter was transferred to the Family Court of Australia.
The matter first came before this Court on 23 September 2019. The order made in the then Federal Circuit Court on 14 December 2018 regulating the children’s day to day care and for the paternal grandmother to have sole parental responsibility for X and Y was continued in full force, and an updated family report was ordered to be prepared by Ms D. At the time of the original comprehensive report the maternal grandmother was not a party to the proceedings.
The addendum report was confined to an interview with the maternal grandmother and, in the discretion of the family consultant, observed interaction between X and Y and their maternal grandmother.
In the absence of any participation by the father an order was made that day removing him as a party to the proceedings, with liberty to apply to be re-joined. The Court also deemed the mother to be the applicant, the paternal grandmother to be the first respondent and the maternal grandmother to be the second respondent for the purposes of trial. The matter was listed for trial to commence at 10.00 am on 25 May 2020.
The mother was ordered to use her best endeavours to obtain a hair follicle test by mid‑October 2019 and provide to the Court a copy of the parenting capacity report prepared for the Youth Court proceedings, as well as any reasons delivered in that Court concerning the children W and Z’s care arrangements.
On 27 November 2019 the mother filed a Response to the paternal grandmother’s Response filed 23 July 2019. She sought orders that X and Y be returned to her care forthwith, that she have sole parental responsibility for the children and that the children spend time with each of their grandmothers as agreed between the parties or as ordered by the Court. She further sought an order that the paternal grandmother be injuncted from allowing the father to contact and/or communicate with the children either directly or indirectly.
Ms D prepared an addendum family report dated 28 November 2019. The recommendation contained in paragraph 28 of the report was that the maternal grandmother spend professionally supervised time with X and Y at a children’s contact centre or other appropriate service, but in the event that caused distress to X and/or Y the time be ceased. Ms D did not observe the children with their maternal grandmother “due to concern about the children’s presentations in the Initial Family Report”.[2]
[2] Family Report dated 28 November 2019 – p 4 of 13.
On 5 December 2019 all extant interim applications were adjourned to 3 February 2020 for hearing. Both the maternal and paternal grandmothers were ordered to apply for acceptance into a children’s contact service, with the maternal grandmother to spend supervised time with X and Y at the service on six occasions for two hours at a time provided that time was not to commence prior to the interim argument on 3 February 2020. This ensured that order was subject to the outcome of the interim argument on 3 February 2020, and was expressed in that manner to enable the registrations at the contact service to occur without delay.
The hearing listed for 3 February 2020 in fact took place on 10 February 2020. The maternal grandmother’s interim applications to spend time and communicate with X and Y were dismissed and trial directions were made.
On 2 April 2020 the mother filed an Amended Response to Final Orders which was deemed to be an Amended Initiating Application for the purposes of trial. The process had become somewhat convoluted as a result of the introduction of both grandmothers into the proceedings and the removal of the father from the proceedings. The mother had in fact filed the original Initiating Application on 5 October 2017 wherein she sought a discharge of the original parenting orders of 16 March 2015, sole parental responsibility for X and Y and an order that they live with her.
In the document filed on 2 April 2020 the original final orders sought by her in her 2017 Initiating Application were deleted therefrom and replaced by an extensive raft of orders going primarily to the issue of time spending. In paragraph 2 of her Amended Initiating Application she sought that the paternal grandmother have sole parental responsibility for X and Y provided she used her best endeavours to reach an agreement with the mother on any matters pertaining to the children’s health, welfare and education.
She further sought that the children live with their paternal grandparents and proposed a regime of time spending with them commencing with three supervised visits on alternate Saturdays from 10.00 am to 2.00 pm leading into fortnightly time spending unsupervised from 10.00 am to 2.00 pm for a further three visits and eventually culminating in the children spending time with her in alternate weeks from the conclusion of school Wednesday or 3.30 pm if a non‑school day until the conclusion of school Friday or 3.30 pm if a non-school day. She also sought time in the intervening weeks from the conclusion of school Friday or 3.30 pm if a non‑school day until the commencement of school Monday or 9.30 am if a non-school day.
She set out proposals for time with the children on special occasions including Christmas, Easter, Mother’s Day and the mother’s birthday and proposed that the children spend time with her for half of the school holiday periods.
She proposed that she and the paternal grandmother be restrained from smoking within twenty‑five metres of the children, criticising or denigrating the other of them or drinking to excess during the time the children were in their care and that she be restrained from taking any drugs in the children’s presence or during the twenty-four hour period before the children spent time with her.
She also sought an extensive raft of orders with respect to interstate and overseas holiday travel, communication between the adults, communication between the children and their mother and the provision of medical and educational information.
On 30 April 2020 the paternal grandmother filed an Amended Response seeking that X and Y live with her and that she have sole parental responsibility for the children. She further sought that the Response to Final Orders filed by the maternal grandmother on 18 October 2019 be dismissed. Ms B (the maternal grandmother) had sought therein orders for shared parental responsibility for the children with the paternal grandmother and that the children spend significant time with her as the Court deemed fit, including a minimum of seven nights during short school holidays and alternate weeks during the Christmas school holidays. She also proposed telephone communication with them on three occasions per week.
On 19 May 2020 as a result of the COVID-19 restrictions then in place the trial date of 25 May 2020 was vacated and the matter relisted on 28 October 2020, subject to the Court’s availability.
The matter was called back on by the Court on 3 July 2020 in circumstances where a trial date had become available as a result of the vacation of another trial on 13 July 2020 and the COVID-19 restrictions had eased. The matter was ready to proceed and was listed to commence at 10.00 am on 13 July 2020. The Court made a further order permitting the parties liberty to adduce updating evidence-in-chief orally at trial in circumstances where it had been delayed for some two months.
On the previous day, namely 2 July 2020, the maternal grandmother had filed an Application in a Case seeking interim orders for time spending at the children’s contact service. The application was made returnable for 3 July 2022 and adjourned to trial, due to commence some eleven days later. An earlier application for similar orders had been heard and dismissed.
On 10 July 2020 an Application in a Case was filed on behalf of the mother seeking to have liberty to file a Second Amended Initiating Application and undertake certain other steps in preparation for the trial. In the affidavit in support of the application filed by her solicitor the Court was advised the mother wished to amend her application to again seek that the children live with her. The application was listed to 10.00 am on 13 July 2020.
The trial
The trial in these proceedings commenced on 13 July 2020.
At the commencement of the trial and after argument the mother’s application filed 10 July 2020 was dismissed, as was a further oral application made by the mother’s counsel at 2.20 pm on 13 July 2020 to adjourn the trial following negotiations that had taken place between the parties earlier in the day.
The competing applications before the Court as at 13 July 2020 were:
(a)the mother’s Amended Initiating Application filed 2 April 2020 wherein she sought:
·orders providing for X and Y to spend gradually increasing time with her;
·certain specific issues orders with respect to injunctions, travel and communication; and
·the obtaining of medical and educational information;
(b)the paternal grandmother’s Amended Response filed 30 April 2020 wherein she sought:
·sole parental responsibility for the children and that they live with her;
·that the mother undertake certain courses and programs as well as hair analysis drug tests;
·that upon the mother’s successful completion of same she and the mother should attend a community dispute resolution conference regarding the question of the children’s time with their mother; and
·that the application of the maternal grandmother to spend time with the children be dismissed;
(c)the maternal grandmother’s Amended Response filed 18 May 2020 wherein she sought:
·that X and Y live with the paternal grandmother and spend time with her on a gradually increasing basis; and
·that she have liberty to obtain educational information about the children.
The mother relied on her trial affidavit filed on 2 April 2020 and the affidavit of her witness Ms E filed on 2 April 2020. Ms E is the mother of Mr F, the mother’s partner at the time of trial and the father of the twins W and Z.
The paternal grandmother relied on her trial affidavit filed on 30 April 2020 with the maternal grandmother relying on her trial affidavit filed on 15 May 2020.
The mother gave additional evidence-in-chief orally at trial and was cross-examined by counsel for each of the paternal and maternal grandmothers as well as counsel for the Independent Children's Lawyer. Her witness Ms E was likewise cross-examined.
The paternal grandmother was cross-examined by counsel for the mother, the maternal grandmother and the Independent Children's Lawyer.
The maternal grandmother was cross-examined by counsel for the mother, the paternal grandmother and the Independent Children's Lawyer.
Ms D, the author of the family reports to which I have referred earlier herein dated 30 November 2018 and 28 November 2019, commenced giving evidence on the fourth day of trial, namely 16 July 2020.
It had been hoped that by the time the trial commenced the proceedings taken by the Department in the Youth Court with respect to the mother’s twins W and Z would have concluded.

As at the commencement of trial those children remained under the guardianship of the Minister pursuant to orders made in the Youth Court of South Australia. The mother’s evidence contained in paragraph 285 of her trial affidavit was that the matter had been closed and that she was “now before the Reunification Court and working with DCP to have Z and W returned to my care within 12 months from 4 December 2019.”
It became apparent during Ms D’s cross-examination by counsel for the Independent Children's Lawyer that the trial would not conclude in the allocated time. In addition, the status of the mother’s relationship with W and Z on an ongoing basis was unclear. This relationship was relevant to the time spending orders the mother was seeking in this Court, particularly because at the time the trial commenced, X and Y had no knowledge of the existence of their half-siblings W and Z.
Although the mother sought no formal orders with respect to X and Y being informed of the existence of their siblings, the issue assumed importance in circumstances where the Court was going to be required to take into account the question of when and how such information would be imparted to them if they were going to spend time with her and the twins were in her care.
It was the clear position of both the mother and the maternal grandmother in cross-examination that X and Y should have such knowledge. They were both firmly of the view that it could simply be imparted to them by the mother when spending time with X and Y.
It was the position of both the paternal grandmother and the Independent Children's Lawyer that the imparting of such knowledge to X and Y was of significantly greater complexity. The issue had not been addressed by Ms D in either of her reports as it had not formed part of the case of any of the parties.
The mother’s evidence to the Court however was that she expected W and Z to be returned to her care during and by the end of the reunification process. This inevitably meant that if X and Y spent time with her pursuant to orders of this Court they would have to be informed of the existence of their siblings. It was the paternal grandmother’s evidence that she was concerned such information could seriously destabilise the mental health of X in particular, although she did not argue against the provision of the information in appropriate circumstances.
The evidence concerning both X and Y, but in particular X, was that he was emotionally very fragile, had serious behavioural problems and had needed regular and ongoing psychological assistance primarily through “L Services”. In paragraph 126 of Ms D’s report dated 30 November 2018 she referred to X’s presentation, and to a lesser degree that of Y, suggesting exposure to considerable trauma in their early life and the impact of that trauma on their development.
In cross-examination on 16 July 2020 Ms D told the Court that at the time she interviewed the mother for the first family report on 30 November 2018 the mother did not inform her that she was pregnant. She agreed with the proposition put to her by Mr McQuade for the Independent Children's Lawyer that it was fair to say that she only became aware of the twins existence, the proceedings in the Youth Court and the involvement of the Department sometime after her first report, having been alerted to those issues by the maternal grandmother.
She agreed that at the time of her second report she had the understanding that the mother had not seen X and Y since late 2018, and that those children had not only not seen or met their siblings but were not aware of their existence.
She expressed the view that X and Y should be informed at some stage of the fact that they had two siblings, but that it was very hard for her to comment as to how that should be achieved, having not seen X and Y for eighteen months. She opined that the knowledge may be imparted through their treating psychologists.
She agreed that the reintroduction of the mother to the lives of X and Y was fraught with difficulty and that it needed to be done sensitively in a manner that was not antithetical to the welfare of the children.
She agreed that as at that day she did not have enough information to be able to express a view as to how and when X and Y should be reintroduced to their mother, and that prior to having the opportunity to see material on the Youth Court file pertaining to the proceedings in that Court she was not in a position to make recommendations as to the reintroduction of the mother to X and Y’s lives.
It was her evidence that she had the capacity over the next couple of months, and saw the value, in seeing the Youth Court file, speaking to therapists and seeing the children again. She agreed that she could undertake that work by late October and that she would prefer to undertake another assessment prior to making recommendations to the Court.
In circumstances where both the mother and the maternal grandmother were seeking orders for interim time spending prior to the resumption of trial, the Court facilitated cross-examination by each of their counsel on that topic. Counsel for the paternal grandmother also cross‑examined Ms D with respect to those interim issues.
Counsel for both the paternal grandmother and the Independent Children's Lawyer opposed orders being made on an interim basis for X and Y to spend time with either their mother or their maternal grandmother. The maternal grandmother had specifically sought time spending orders in the Application in a Case filed by her on 3 July 2020.
On 16 July 2020 after hearing submissions and for ex-tempore reasons delivered that day the Court made the following order:
1.That the Application in a Case filed herein by the Second Respondent Maternal Grandmother on 3 July 2020 be dismissed.
2.That the oral application of the Applicant Mother’s Counsel for orders providing for [X] and [Y] to spend time with her pending the resumption of this trial on 28 October 2020 be dismissed.
3.That this trial be adjourned part-heard with respect to final parental responsibility orders and “spend time with” orders to 10.00 am on 28 October 2020 (3 days allowed).
4.Directions be adjourned to 17 August 2020 at 9.15 am (30 minutes allowed).
5.That an updated Family Report be prepared by [Ms D] with the Report to include interviews with the Mother, the Paternal Grandmother and the Maternal Grandmother as well as observations of the children [X] born in 2011 and [Y] born in 2014 with each of the parties in the discretion of [Ms D] and, with the Report to take into account any information that [Ms D] may seek and obtain from:
a. [X] and [Y’s] school; and
b.Any health professionals assisting [X] and/or [Y] with respect to their psychological wellbeing.
6.That the Report also address the issue of the appropriateness of [X] and [Y] being told of the existence of their siblings [W and Z] (sic) and how such information may best be imparted to [X]and [Y].
7.That the children [X] and [Y] live with the First Respondent Paternal Grandmother.
8.That paragraph 1 of the Response to Final Orders filed herein by the Paternal Grandmother on 7 November 2019 be otherwise dismissed.
Paragraph 7 of that order finalised the “lives with” aspect of the proceedings as neither the mother nor maternal grandmother sought such an order.
Although paragraph 3 of the orders provided for a resumption of the part-heard trial on 28 October 2020, at a further directions hearing on 25 August 2020 and in circumstances where the progress and possible outcome of the Youth Court proceedings regarding the mother’s twins were both still unclear, paragraphs 5 and 6 of the order of 16 July 2020 relating to an updated family report from Ms D were suspended. The matter was further adjourned for mention only to the original part-heard trial adjournment date of 28 October 2020.
On 22 September 2020 the Independent Children's Lawyer, Mr Eid, filed an affidavit annexing correspondence to him from the Department dated 18 September 2020.
In that correspondence the Independent Children's Lawyer was advised as follows:
…
The department currently have care and protection orders in relation [W] and [Z] (Ms Donal's other children not subject of the proceedings) made through the Adelaide Youth Court. These care and protection orders are due to expire on 7 October 2020. At this time the department will determine what further involvement is required and whether further care and protection orders will be sought.
Departmental records indicate that [Ms Donal] and [Mr F] remain residing together in a relationship. In late July 2020 [Mr F] was arrested for breach of bail conditions and remanded in [H Detention Facility], he was released in [mid] 2020.
It should be noted that the department are still awaiting [Ms Donal] and [Mr F] to undertake their required drug screens. The outcome of these drug screens will form part of the departments assessment regarding [Ms Donal] and [Mr F]'s parental capacity.
Departmental records also indicate the [Ms Donal] has expressed her intention to take the care of [X] and [Y] as well as [W] and [Z]. The department have raised their concern with [Ms Donal] about her capacity to provide fill time care to all four children.
…
In those circumstances, on 28 October 2020 the Court adjourned directions with respect to the part-heard trial to 11 December 2020, continued the suspension of the previous order for an updated family report from Ms D and ordered that on or before 5 December 2020 the Independent Children's Lawyer use his best endeavours to obtain, file and serve a further brief letter of report from the Department as to the progress of the matter in the Youth Court.
On the adjourned date of 11 December 2020 the Court was advised the Youth Court proceedings with respect to W and Z had not concluded and the matter was therefore listed to resume on 12 August 2021. The updated family report from Ms D previously ordered on 16 July 2020 was ordered to be available to the parties and the Court on or before 31 May 2021 and trial directions were adjourned to 30 June 2021.
Ms D’s report was prepared and was dated 2 June 2021.
On 6 July 2021 a Deputy Registrar (now a Judicial Registrar) granted leave to each of the parties to file and serve one updated affidavit on or before 5 August 2021. The parties complied with that order and the trial resumed on 12 August 2021.
At the commencement of the hearing the Court permitted some brief updating oral evidence from the mother. It was her evidence that:
·she was still in a relationship with Mr F, the father of the twins W and Z;
·Mr F was in jail at that time arising from having breached parole upon his release from prison following his jail sentence, and was due to be released on 7 October 2021;
·she was communicating with him approximately five times a day when he called her from prison and she had seen him via Zoom call sporadically, approximately every two to four weeks;
·the relationship she had with Mr F was “great” and “loving”;
·she had been charged with three basic offences of dishonestly dealing with other people’s documents;
·she had also been charged with driving disqualified which charge was likely to be withdrawn;
·none of the offences with which she had been charged were drug related in any way;
·she had also been charged with breach of bail (four times) within three weeks but that she was obtaining a Doctors Certificate in relation to that charge which she expected to be withdrawn;
·she was on home detention bail and needed a “pass out” to leave the property;
·she was living with her mother but intended to change her bailed address to that of her father;
·she was not using drugs; and
·W and Z were residing, at the direction of the Department, with Mr F’s relative who she had met on one occasion some four years previously but about whom she knew nothing.
Ms D was then called and gave further oral evidence in addition to that contained in her updated report dated 2 June 2021. She was cross-examined by counsel for the mother, counsel for the paternal grandmother and counsel for the maternal grandmother.
Counsel for the Independent Children's Lawyer, Mr McQuade, then asked further questions of the mother in cross-examination as did counsel for paternal grandmother, following upon which the paternal grandmother was recalled and cross-examined by Mr McQuade, and by counsel for each of the mother and the maternal grandmother.
On 13 August 2021 the parties and the Independent Children's Lawyer engaged in extensive negotiations for most of the day. At the conclusion of the day the Court made a formal order in the following terms:
UPON NOTING THAT:
A. The evidence in this matter is concluded; and
B.Certain matters are able to be resolved by consent following extensive negotiations between the parties and the Independent Children's Lawyer occupying the entirety of today.
THE COURT ORDERS THAT:
1.Directions be adjourned to Thursday 19 August 2021 at 9:15am as a face-to-face hearing.
2.That by no later than 3:00pm on 18 August 2021 Counsel for the parties and the Independent Children's Lawyer facilitate the provision of a minute of proposed consent order covering those aspects of the dispute that have been resolved to Justice Mead by way of email to her Associate at ...
3.That contemporaneously therewith, an aide memoire having been compiled by agreement between the parties’ Counsel and Counsel for the Independent Children's Lawyer setting out in dot-point form the issues that remain in dispute.
4.That on the adjourned hearing it is proposed that final orders by consent will be made to the extent possible together with an order for Counsel to prepare and file brief written submissions on outstanding issues insofar as they are relevant to each Counsel.
On 19 August 2021 the Court made the following two orders:
UPON NOTING THAT:
A.The Court is advised that the second respondent maternal grandmother is not opposed to an order being made in due course against the mother restraining the mother from permitting the children [X] born in 2011 and [Y] born in 2014 from having contact with or communication with her or allowing any other person to do so SAVE AND EXCEPT for the paternal grandmother; and
B.The Court is advised that the mother is not opposed to the orders made this day by consent as between the first respondent paternal grandmother and the second respondent maternal grandmother.
THE COURT ORDERS BY CONSENT AS BETWEEN THE FIRST RESPONDENT PATERNAL GRANDMOTHER AND THE SECOND RESPONDENT MATERNAL GRANDMOTHER THAT:
1.That the maternal grandmother be at liberty to send to the children letters, cards and gifts and a photograph of herself to the paternal grandmother’s address, and that the same shall be delivered by the paternal grandmother to the children save that the paternal grandmother be at liberty to intercept any letters, cards or gifts that are age or subject matter inappropriate, providing that she notify the maternal grandmother in writing if she has done so, and the reason for same.
2.The paternal grandmother shall ensure that the children acknowledge receipt and thank the maternal grandmother for the letters, cards and gifts sent by the maternal grandmother.
3.That should the children request to otherwise write to or telephone the maternal grandmother, the paternal grandmother shall facilitate same.
4.That within the next 4 months, the paternal grandmother do all such things as may be necessary to commence the process of engaging the children with a psychologist or psychiatrist for the purposes of, amongst other things, the said psychologist or psychiatrist providing recommendations to the paternal grandmother as to if, and if so, when and how, the maternal grandmother be re-introduced to [X] and [Y].
5.That the paternal grandmother keep the maternal grandmother periodically advised as to the current recommendations of the said psychiatrist or psychologist.
6.Thereafter, the children spend time with the maternal grandmother on such days, times and conditions as may be agreed between the paternal grandmother and maternal grandmother NOTING THAT the paternal grandmother undertakes to be guided by the recommendations of the children’s psychologist or psychiatrist.
7.For the purposes of paragraphs 4 and 5 hereof the paternal grandmother be at liberty to provide the psychologist or psychiatrist with a copy of the three reports authored by [Ms D].
8.That the maternal grandmother be at liberty to provide copies of the three Family Assessment Reports authored by [Ms D] to any counsellor or psychologist whom she may consult from time to time for the purposes of improving her co-parenting skills and relationship with the paternal grandmother and mother.
9.That the amended response to final orders filed herein by the maternal grandmother on 18 May 2020 be otherwise dismissed.
and
UPON NOTING THAT the following issues remain in dispute as between the applicant mother and the respondent paternal grandmother at the conclusion of the evidence in these proceedings, namely:
A.the process by which the mother’s time should commence with the children [X] born in 2011 and [Y] born in 2014 and the process by which any such time should progress thereafter;
B.the process by which [X] and [Y] are to be informed of the existence of their siblings [W] and [Z] (sic);
C.the terms of any restriction that the Court should impose on any contact that may be permitted between the children and their father [Mr Adamec];
D.the terms of any injunction that the Court may make with respect to the mother permitting any contact or communication between [X] and [Y] and [Mr F] (sic); and
E.any conditions that should attach to the order for sole parental responsibility to be made herein today in favour of the paternal grandmother.
THE COURT ORDERS:
1.That with the consent of the mother, the paternal grandmother have sole parental responsibility for [X] born in 2011 and [Y] born in 2014 NOTING the terms of notation “E” to this order.
2.That on or before 17 September 2021 counsel for each of the applicant mother, the respondent paternal grandmother and the Independent Children's Lawyer file written submissions with respect to the issues referred to in the notations to this order, with such submissions to include the draft orders they each seek and a list of any relevant authorities.
3.That on or before 11 October 2021 each counsel be at liberty to file a further written submission in response to the submissions of the other of them.
4.That the matter be listed to enable counsel to speak to the submissions on Thursday 21 October 2021 at 9:30am (30 minutes allowed).
Written submissions as ordered in paragraph 2 of the second order of 19 August 2021 were duly filed by each counsel.
At the hearing on 21 October 2021 each of the three counsel remaining in the proceedings (as of 19 August 2021 the maternal grandmother was no longer a participant in the proceedings, consent orders having been made and her application having otherwise been dismissed) spoke to their written submissions and judgment was reserved.
At that time the mother was still the subject of the criminal charges in respect of which she had given evidence on 12 August 2021. They were charges that if proven may have resulted in a sentence including a term of imprisonment. It was for that reason paragraph 2 of the order of 21 October 2021 was made, namely:
2.That the mother’s solicitor be at liberty to forward correspondence to the Associate to Justice Mead as well as to the solicitors for the paternal grandmother and the Independent Children's Lawyer following upon the hearing in the [Suburb J] Magistrates Court on 22 October 2021 regarding the mother’s pending criminal charges ONLY AS TO the outcome of those charges.

The outcome, including any possible term of imprisonment, had relevance to the application of the mother to spend time with X and Y as it may have impacted on her ability so to do.
Subsequent to the order of 21 October 2021 the Court, together with the solicitors for the paternal grandmother and the Independent Children's Lawyer were advised by way of a series of emails from the mother’s solicitor of the progress and eventual outcome of the criminal charges against the mother as follows:
·on 8 December 2021, that the hearing on 22 October 2021 had been adjourned to 14 December 2021;
·on 15 December 2021, that the matter had been further adjourned to 8 February 2022 to enable the mother to continue the drug program and counselling in which she is engaged and that the home detention requirement had been removed;
·on 3 March 2022, that their client had advised the matter had been further adjourned to 28 February 2022;
·on 24 March 2022, that despite several efforts they had been unable to contact their client since 23 February 2022; and
·on 24 March 2022, an email request from the mother’s solicitors to the Family Law Information Sharing Program Manager co-located in the Court registry for information as to the outcome of the hearing.
By email dated 24 March 2022 the Court, the solicitors for the mother, the paternal grandmother and the Independent Children's Lawyer were advised that the outcome of the criminal proceedings pending against the mother was as follows:
·two convictions in relation to two counts to fail to comply with a bail agreement with fines issued;
·a conviction with costs only in relation to a further count of fail to comply with a bail agreement; and
·fifty-two counts of possess prohibited material (identity theft) – convictions on twenty counts – a head sentence of imprisonment of six months ten days commencing on 1 March 2022 to be released after one month imprisonment onto an eighteen month Bond. There was no information included as to the terms of the Bond.
This information was confirmed by letter from K Solicitors dated 12 May 2022. That firm of solicitors had filed a Notice of Address for Service on behalf of the mother on 13 April 2022.
Issues to be determined
I have referred earlier herein to the notation made by the Court preceding the order for sole parental responsibility made on 19 August 2021, setting out the five issues that remained in dispute at the conclusion of the evidence. These were the issues that were the subject of closing written submissions to which each of the counsel spoke on 21 October 2021.
The question of any time spending between the mother and X and Y, any injunctions the Court may make with respect to the mother permitting any contact or communication between the children and Mr F, any conditions that should attach to the order for sole parental responsibility in favour of the paternal grandmother made on 19 August 2021 and the terms of any restriction the Court should impose on any contact that may be permitted between the children and their father, Mr Adamec, were all issues in dispute at the time the trial commenced.
The question of whether or not X and Y should be informed of the existence of their siblings W and Z, and if so, how they should be so informed, arose during the trial process but was not the subject of any specific application by any party. It was common ground however at the conclusion of the evidence that it was an issue that at the very least needed to be taken into account by the Court at the time of making final orders.
Having set out the extensive history to this matter to give context to these reasons, I will now turn my attention to the issues that remain to be determined.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative framework within which the Court determines the parties competing parenting proposals.
Section 60B(1) sets out the objects of the Act as regards to children’s orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in s 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[3] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act, being mindful of the objects of the Act and the principles underlying those objects.
[3] s 60CA of the Act.
Section 61DA of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child's best interests for the child’s parents to have equal shared parental responsibility.[4]
[4] s 61DA(1), (2) and (4) of the Act.
The order granting sole parental responsibility for X and Y to Ms Adamec was made by consent, as was the order that the children live with their paternal grandmother.
Issues to be determined
Notation (A):
The process by which the mother’s time should commence with the children X born in 2011 and Y born in 2014 and the process by which any such time should progress thereafter.
It was submitted on behalf of the mother that there should be no preconditions attaching to X and Y recommencing spending time with her.[5] She consented to time commencing on a supervised basis at the P Services on six occasions with a report to follow.[6]
[5] Written submissions on behalf of the mother filed 22 September 2021 – paragraphs 36 and 45.
[6] Written submissions on behalf of the mother filed 22 September 2021 – paragraph 53.
She was also agreeable to the time spending following time at the children’s contact service to be as agreed between she and the paternal grandmother, but in default sought specified orders for unsupervised time.[7] She sought unsupervised time following upon the time at the children’s contact service for two out of every three weekends from 4.00 pm Friday to 4.00 pm Sunday and additional time for special occasions and as otherwise agreed.[8]
[7] Written submissions on behalf of the mother filed 22 September 2021 – paragraphs 53 and 54.
[8] Written submissions on behalf of the mother filed 22 September 2021 – paragraph 54.
It was the position of the paternal grandmother that there should be no time spending between the mother and the children but that she should be at liberty to send the children letters, cards and gifts, provided she had liberty to intercept any such letters, cards or gifts that were age or subject matter inappropriate.[9]
[9] Written submissions on behalf of the paternal grandmother filed 5 October 2021 – Part B, Order 1.
The paternal grandmother had an alternative position set out in paragraphs 1.1 to 1.4 inclusive of the written submissions. The first part of that alternative proposal was that there be no time or communication between the mother and children until the mother completed an abstinence‑based drug rehabilitation program of at least twelve months (including the twelve month Treatment Intervention Court program) and which contains a random drug testing component, and provided the paternal grandmother with a certificate of completion or proof of completion.
She sought that in the event the mother was unable to enrol in such a program then she attend and complete a program of not less than six months duration with the mother to undertake a hair follicle drug test for a six month period at the conclusion of twelve months at her sole expense. She proposed that once proof of completion of such a program was provided as well as a negative hair follicle drug test for a further period of six months then she and the mother and the children enrol at the P Services for six supervised time spending periods.
She then proposed that at the conclusion of that supervised time spending, X and Y spend time with their mother on days, times and on conditions as agreed between she and the mother, and that she would consider advice provided by a psychologist or psychiatrist upon whom X and Y had attended in determining what time they should spend with their mother.
It was the position of the Independent Children's Lawyer, as set out in written submissions filed on 21 September 2021, that there should be no order made for time spending or direct communication between the children and the mother. It was submitted that it was in the best interests of the children for the mother to be at liberty to send them letters, cards and gifts and photographs of herself to the paternal grandmother’s address, with the paternal grandmother to deliver them to the children save that she be at liberty to intercept any letters, cards or gifts that are age or subject matter inappropriate providing that she notify the mother in writing if she has done so and the reason for same.[10]
[10] Written submissions on behalf of the Independent Children's Lawyer filed 21 September 2022 – page 11.
It was the position of the mother that not only was it in the best interests of the children that they spend time with her but further, that she did not pose any unacceptable risk to the children.[11] It was her position that the relationship between she and the paternal grandmother had broken down to such an extent that if there were no orders for defined time spending between she and the children the paternal grandmother would simply refuse to negotiate any time and the children would be deprived of a personal relationship with her.
[11] Written submissions on behalf of the mother filed 22 September 2021 – paragraph 55.
There is no doubt that in the ordinary course of events there is a benefit to children in having a meaningful relationship with both of their parents and alternative caregivers. It should be noted however that in s 60B(1) of the Act, the reference is to ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.
It was common ground in this matter that X and Y had been exposed to abuse, neglect and family violence whilst in the care of their parents. The environment to which X and Y had been exposed whilst in the care of their parents was discussed at length in the first report of Ms D dated 30 November 2018.
I have referred earlier in these reasons to the serious allegations made by each parent against the other of them with respect to their parenting capacity in the Notices of Risk they each filed in this tranche of the proceedings.
In paragraph 9 of Ms D’s first report she referred to a total of thirty-one notifications having been made to the Department in relation to X and Y concerning:
·the father’s use of violence and illicit substances;
·the mother’s minimisation of the father’s violence;
·the children’s exposure to violence on the part of the father towards the mother;
·the mother and her brother’s use of “ice” whilst Y was present;
·the children’s exposure to parental substance abuse;
·poor parental mental health and violence perpetrated by both parents against the other;
·X’s behaviour at school including absenteeism and him having stabbed a student and attempted to strangle another two students at school; and
·the mother attending only one out of five antenatal appointments while pregnant with Y.
In paragraph 10 of the same report reference was made to the Department opening an investigation in relation to allegations of Y being touched inappropriately by Mr F, and further reports being made to the Department in 2018 concerning parental substance abuse, poor parenting capacity, violence and X’s behaviour. In the same paragraph Ms D referred to the Department noting refusal on the part of the mother in 2018 to cooperate with M Hospital Child Protection Service with regard to Y being interviewed about the allegations, to have Mr F leave her home, and to comply with requests for drug testing.
In paragraphs 34 to 55 of the report Ms D set out details emerging from her discussions with the mother and Mr F. In paragraph 40 she referred to the mother explaining she had “been through a lot of counselling” and further saying that she was engaged with Drug and Alcohol Services. She conceded to Ms D however that she had not actually started domestic violence counselling support or attending at the Drug and Alcohol Services.
In paragraph 50 Ms D reported the mother acknowledging that Y and X had been exposed to a considerable amount of violence, but said she had never been violent towards the children and tried to protect herself and the children. The mother described to Ms D an “emergency plan” that X knew of and understood involving him taking Y into another room and putting the television on if their father’s violence towards their mother escalated.
In paragraph 51 Ms Donal was recorded as acknowledging using amphetamines resulting in a positive hair follicle drug test through the Department, and reporting to Ms D that she used “meth” to “self-medicate” as a result of not taking prescribed anti-anxiety and antidepressant medication. She was also reported in paragraph 51 as denying having ever used methamphetamine when the children were in her care, or using alcohol.
In paragraph 52 Mr F was recorded as acknowledging having used methamphetamine in the past and having lost his Driver’s License for two years as a result of a drink driving conviction.
At the time of the interview the mother was pregnant and the father of her unborn twins was Mr F. Neither the mother nor Mr F divulged that information to Ms D.
In her discussion with X as reported in paragraphs 97 to 108 of her report Ms D commented on X’s references to violence towards his mother on the part of his father and witnessing his mother screaming for help when being chased by his father, as well as having been shown a gun and bullets by Mr Adamec and to his father hiding the gun from the police.
Ms D described him in paragraph 98 of her report “as a somewhat aggressive and intense young boy in his interactions” and to being concerned about X demonstrating a lack of empathy and describing to her disturbing attitudes to and behaviour at school, including what he described as “bad” behaviour.
In Ms D’s third report dated 2 June 2021 she recorded her discussions with X in paragraphs 55 to 64. He told Ms D, as she reported in paragraph 56, that he was unable to see his mother because “she did drugs” and further said “my dad did drugs for a while”.
X expressed to Ms D that he was very sad he did not see his mother and that he had not seen her at that time for three years. He described, as reported by her in paragraph 57, to sometimes getting “very angry” and told her he “used to put a knife to [his] chest because he ‘wanted to die because I’m done with life”.
In paragraph 59 he was reported as telling Ms D that some days he would like to see his mother and other days he would not because of her drug use. Later in the interview he said he would be “very excited” to see his mother and would have many questions he would like to ask her.
In paragraph 60 he reported to Ms D that her office reminded him of a location where his father was chasing his mother around the car “because mum made him do drugs” and to he and Y being very hungry but not wanting to “distress” their parents and trying to eat raw eggs they had cracked.
Y was significantly younger than X when she was exposed to the behaviour of both of her parents in the family household and described, as reported by Ms D in paragraph 69 of her third family report, she and X attacking their parents with cleaning things “to try and get them to stop [fighting]”. She told Ms D that it was scary and had happened “a long time ago”.
The matters raised by X in his conversations with Ms D between late 2018 and mid‑2021 were alarming.
The behaviours he reported accorded with allegations made by each of his parents during their discussions with Ms D. They were not denied by the mother in her evidence or in cross‑examination. His father did not participate in the trial.
I am satisfied that in their parents’ household X and Y were exposed to abuse including physical and psychological abuse directed by each of their parents to the other of them, neglect including exposure to drug use, and family violence.
I find that both children need to be protected from psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It was common ground that X in particular had serious behavioural problems at school, frequently exhibited anger towards staff and other students and had, by the time of trial, required significant psychological assistance to manage day to day life and any level of regular attendance at school.
To make any order for the children to spend time with their mother the Court would need to be satisfied that they would benefit from having a meaningful relationship with her.
Both children went into the primary care of their paternal grandmother with her consent by order of 21 June 2018. It was the nub of the mother’s case, as contained in her trial affidavits and in her answers in cross-examination, that the paternal grandmother was determined to ensure that the children spent no time with her and that it was her objective to alienate her from the lives of the children.[12]
[12] Written submissions on behalf of the mother filed 22 September 2021 – paragraph 56.
I find, taking into account the evidence of the paternal grandmother as contained in her trial affidavit, together with her answers in cross-examination, that she was not opposed to the children spending time with their mother provided such time was in their best interests.
I find that her primary concern was achieving as much stability for the children, X in particular, as was possible, to enable them to progress well in their education and recover from trauma experienced whilst in the care of their parents, both when their parents were living together and when they each had the care of the children whilst separated.

The position of the paternal grandmother was supported by the views expressed by Family Consultant Ms D. She was concerned that in the absence of any clear evidence of sustained change being exhibited by the mother with respect to her use of drugs in particular, the children were at risk of further trauma if they spent time with her. She was concerned in particular about the risk the mother may pose in attempting to undermine the children’s relationship with the paternal grandmother.
Ms D maintained that position notwithstanding her concern about the paternal grandmother having facilitated time between the children and their father in the full knowledge of having undertaken not to do so.
The credibility of the mother was a significant concern to the Court. I have already referred to the failure on the part of the mother to be frank with Ms D when interviewed for the first family report on 19 November 2018.
The interviews took place against a backdrop of litigation involving serious allegations of X and Y having been exposed to abuse, neglect and family violence in the household she shared with the children’s father Mr Adamec, as well as allegations about her continuing serious drug use.
Notwithstanding the knowledge that her parenting capacity and that of the father were the major issues of concern and relevance to the Court’s determination of parenting arrangements for X and Y, the mother was at the time of the interviews seeking orders that X and Y live with her but did not mention that she was pregnant with twins. She described the relationship with Mr F as “loving”,[13] and he attended the interview with her. Mr F did not raise the mother’s pregnancy with Ms D.
[13] Family report dated 30 November 2018 – paragraph 38.
The twins were born after the interview and by the time the trial concluded had become the subject of orders made in the Youth Court providing for them to be under the guardianship of the Minister until they attained the age of 18 years.
The fact of the twins remaining in the Neonatal Intensive Care Unit at M Hospital pending orders being made in the Youth Court did not come to the attention of this Court until April 2019, following the mother having been served with the Youth Court application on 9 April 2019.
In addition, in Ms D’s first report she commented in paragraph 53 to a conversation with the mother regarding her (Ms D) overhearing the mother telling Y during the observation session to tell Ms D that she wanted to go home to the mother’s home. She reported the mother as expressing her view that she had made the statement in response to Y asking her for “help” when they went into the toilet together.
Ms Donal was cross-examined about that issue and agreed that she spoke with Y when taking her to the toilet. When asked why she had said what she did to Y, she replied that Y had told her in the toilet that she “missed her mummy and wanted to come home” and she had told Y to tell the lady if she had any problems.
She admitted that she had asked Y several times if she wanted to go to the toilet and conceded that each time she asked that question there was no indication from Y that she did want to go to the toilet. When asked why she had taken her anyway she replied that she knew her children and when they want to go they “grab their crotch and don’t go” but she knew Y needed to go to the toilet.
She denied that she told Y to tell the lady that she wanted to “go back to her mummy” and agreed that it was her belief that Ms D had misheard the conversation.
I find that the mother’s evidence in cross-examination was deliberately untruthful, taking into account her earlier answers to questions in cross-examination where she agreed that she did not want the children living with Ms Adamec. At the time of her initial discussions with Ms D for the purposes of the first family report as reported in paragraph 128 of that document, and at the time of trial, she was unable to express any support for the children living with their paternal grandmother. She maintained this position even when the children’s relationship with Ms Adamec was considered by the court expert and reported by her to be pivotal to the children’s current living arrangements.
She denied that Ms Adamec had taken good care of the children and said she did not accept the concern of Ms D with respect to her (the mother) not supporting the children’s placement with their paternal grandmother. She further said she was worried about the safety of her children in the care of their paternal grandmother. There was no basis for such concern taking into account all the evidence before the Court.
In cross-examination the mother told the Court she had last taken methamphetamine in 2019 and then when asked further, said that it was February 2020.
On 17 May 2021 the mother spoke with Ms D for the purpose of a third family report. At that time she reported remaining in a relationship with Mr F who was then incarcerated, and to she and Mr F having had the twins Z and W.
At the time of the interview she had discussions with Ms D about her current drug use. Ms D reported in paragraph 28 that the mother told her:
·she had attended drug intervention at “[R Services]” for three out of five days;
·that that service was not for her because it used a drug (Valium) to cease her use of methamphetamine which was not appropriate;
·she thought that the “[R Services]” program would be a more relaxed environment and that she would have more freedom;
·following her interaction with the “[R Services]” program she engaged with Q Services in group sessions;
·this service again was not to her liking as she was prevented from discussing her addiction within the service;
·she had tried the “[T Program]” next but it was cancelled because of COVID-19;
·she then engaged with the “[S Program]” program for seven months where the focus was on cognitive behavioural therapy and relapse prevention; and
·that she had a hair follicle test in August 2020 which had been positive for methamphetamine resulting in orders being sought by the Department for Z and W to be in the guardianship of the Minister until they attain the age of 18 years.
The information about having tested positive for methamphetamine in a hair follicle test carried out in August 2020 was in response to a question from Ms D as to when the mother had last used the drug.
Subsequent to the interview with Ms D, the mother emailed Ms D acknowledging she had not been honest in her descriptions of her last drug use and detailed having used methamphetamine two weeks before her interview, namely in approximately early May 2021.
On 6 February 2020 an affidavit was filed by the mother’s then solicitor annexing a copy of a Parenting Capacity and Personality Assessment carried out by Dr G, Clinical Psychologist for the Department. That report of course related to the parenting of her twins and was unchallenged.
Serious concern was raised in that report as to the capacity of the mother to provide care for her twins without substantial support. It referred to the opinion of the expert at that time not precluding the mother from parenting the twins in the long-term:
…so long as she is able to demonstrate ongoing abstinence from drugs and also demonstrate the capacity to build a secure attachment with her babies and parent them appropriately. Her capacity to do this remains unclear. Given her tendency to deny and evade, [Ms Donal’s] capacity to parent her babies remains uncertain.[14]
[14] Report of Dr G dated 10 September 2019 – page 15.
By the time of trial the mother was still evasive about the extent of her drug use in circumstances where I find that she clearly understood that it was of major importance in the Court’s determination of her application to spend time with her children.
During her interview for the purposes of the third family report on 17 May 2021, she advised Ms D that Mr F, with whom she remained in a relationship, was currently incarcerated but eligible to meet with the Parole Board in August 2021.
In the mother’s updating affidavit filed on 5 August 2021 prior to the resumption of the part‑heard trial on 12 August 2021, she stated in paragraphs 24 and 25 that she had been charged with fraud offences, having first been charged in March 2021. In paragraph 27 she deposed to being initially arrested and remaining in custody for one day before being bailed to her previous address. She also deposed in paragraph 26 to further charges being laid against her following a police raid on the share house she was living in on 24 May 2021, and being in custody for seven days after her arrest before being granted bail.
The police raid occurred, on the mother’s evidence, seven days after her interview with Ms D for the third family report on 17 May 2021. The first charges relating to fraud, in respect of which she was ultimately imprisoned, were, on her evidence, laid some two months prior to her interview with Ms D. Notwithstanding telling Ms D that Mr F was incarcerated at the time of her interview, she did not raise the issue of the charges against her that were extant at the time of the interview on 17 May 2021.
There was no evidence that she attempted to correct the situation with Ms D by way of an email, as she had done previously with respect to her drug use after the interviews for the first family report.
On page 15 of the Parenting Capacity Report of Dr G to which I have referred previously, Dr G reported as follow:
…
The overall result of [Ms Donal’s] response style in this assessment has led me to assess her clinically as someone who has low self-awareness, poor self-esteem, difficulties reflecting on her own behaviour and its consequences, and has trouble taking responsibility for her mistakes. The question is how such a self-defeating personality style would function when caring for her twins. In my opinion, the evidence to hand suggests that [Ms Donal] would have difficulty coping with the full-time care of her babies and would have difficulty taking responsibility for them should there be any problems or challenges in managing them. Her self-defeating personality style may cause her to refuse or ignore assistance while overestimating her parenting capabilities…
That report was prepared without reference to X and Y and for the purposes of the proceedings in the Youth Court. However I consider the report, which was unchallenged, to be of assistance in that the mother’s presentation in these proceedings, and the evidence upon which she relied including her own perceptions of her parenting capacity and the needs of X and Y, was indicative of her having difficulties reflecting on her own behaviour and its consequence and trouble in taking responsibility for her mistakes.
I find that the mother avoided being frank when she was aware that frankness would prejudice her position and further, that she lacked any significant insight into the overwhelming need for X and Y to live in an environment where they were loved and where the opportunity for them to have a sense of safety and stability was at its highest.
I find no basis upon which to form a view that the actions taken by the paternal grandmother were other than motivated by a genuine desire to protect X and Y from abuse, neglect and family violence and thereafter to provide them with stability and such psychological assistance as was available, particularly for X, to help both children reach their full potential.
I find that in circumstances where the mother was for the most part minimising her serious drug use in her evidence before the Court and in the information she provided to Ms D for the purposes of the family report, that she had little insight into the serious effect the behaviours arising from her drug use contributed to the children being exposed to abuse, neglect and family violence. I am satisfied that she suffered physical and psychological abuse at the hands of the father.
I will address the issue of the paternal grandmother permitting the children to spend time with their father later in my consideration of these various issues for determination.
As to the additional considerations, X did express, in somewhat ambivalent terms, a desire to see his mother. Such a desire is understandable in circumstances where by the time of the third family report he had not seen his mother for some three years.
In the ordinary course of events, it would be likely that the Court would place some significant weight on the views of a child aged nine and half years, as he was at the time of the interviews in May 2021.
Nevertheless, as I have said previously, the evidence was undisputed with respect to the significant mental health challenges faced by X and the associated behavioural difficulties he encounters at school, all of which had by then required significant psychological assistance primarily through “[L Services]”.
It was the view of Ms D that the most important thing for both X and Y at the time of trial was stability, such that ongoing counselling and psychological assistance for X could occur in the best environment possible for him taking into account his trauma related fragilities.
There was no evidence to satisfy the Court that the mother appreciated the children’s need for stability or that she would do other than undermine that stability if the children were to spend time with her.
In addition, the mother was adamant that X and Y needed to be informed of the existence of W and Z. This caused significant concern for the paternal grandmother particularly with respect to the possible anger that might be experienced by X as a result of that information and any further associated destabilising of his mental health.
I find, taking into account the possible risks to X’s mental health if he was to spend time with his mother, that his views are not a matter on which the Court should place any weight.
I consider that Y is of an age where her wishes, which were not clearly described in any event, are not a matter of significant weight. I also find that it would not be in her or X’s best interest to be subject to different orders.
I am satisfied that X and Y have a loving relationship with their paternal grandmother and, particularly as reported by X to Ms D, find the environment to provide them with safety and stability.
In paragraph 100 of the first family report of Ms D she reported X as noting that he felt “calm at Bubba’s” and in paragraph 57 of the third family report Ms D described X as telling her that the school would call his (paternal) grandmother if he was very angry and she would come and help him. In paragraph 58 he noted his (paternal) grandmother helping him when he had scraped his toe causing it to bleed.
In paragraph 61 Ms D reported X speaking positively of living with his (paternal) grandmother, who he referred to as “Bubba”. He referred to his (paternal) grandmother recently purchasing a bird and items for a bird he had found on a fence and to the significance X attached to the bird.
X described to Ms D a beach holiday with his (paternal) grandmother and other family members and his father and to Ms Adamec having looked after his injury and helping make it better for him when he fell on soft sand on a motorbike and burnt his leg.
In paragraph 70 Ms D described the observation of interactions between Ms Adamec and X and Y as “lovely to watch”. She described the children as genuinely engaging with their grandmother and to her demonstrating feelings of support and encouragement in their interactions with her.
In paragraph 56 Ms D described X telling her that “I’ve always been worried about what mum did” and saying he was unable to see his mother because “she did drugs”. He said he felt “very sad” he did not see his mother and that it had been three years since he saw her.
I find that Ms Adamec dearly loves both children and is using her best endeavours to provide them with a stable, safe and loving environment in which they can progress feeling secure in her love and support.
I have no doubt X loves his mother, but has some feelings of ambivalence, and Y described wanting to give her mother a “big hug” and “say hello” when she saw her.
At the time of the interviews in 2021 Y was only aged 7 years and had not spent time with her mother for almost half of her life.
I have no doubt that the mother loves X and Y. That fact was easily conceded by the paternal grandmother. Nevertheless, I am not satisfied on the evidence that the mother has a secure relationship with either X or Y.
I find that the mother did attempt to spend time with both of the children and communicate with them but that her ongoing drug use and unstable personal circumstances resulted in Ms Adamec being reluctant to facilitate time spending and communication.
There was no evidence about the extent to which the mother has fulfilled her obligations to maintain the children.
I find that in the event the Court acceded to the orders sought by the mother such that on occasions X and Y were separated from their paternal grandmother, there is a very real risk of them again experiencing trauma, distress or instability arising from the limited parental capacity of their mother and the possibility that she will talk to them about their siblings, regardless of any orders to the contrary being in place.
I was not satisfied on the evidence that the mother has been able to abstain from drug use for any significant period of time or that she has engaged in any programs for sufficient time to gain benefit from the program and insight into the extent of her drug addiction and the impact of that addiction on her parenting. These factors mitigate against the children being separated from their source of safety and security, namely their paternal grandmother, for time spending with their mother at this time.
For reasons to which I have already referred I am not satisfied that the mother has the capacity to provide for the needs of X and Y, particularly their emotional needs, if they were to spend time with her.
I find that to date the mother has failed to undertake the responsibilities of parenthood in such a manner that is beneficial to X or Y. Although she loves both children, her drug use, her unstable lifestyle and no doubt her own trauma arising from her twins being taken into permanent care, all speak against her having the capacity to undertake the responsibilities of parenthood such that X and Y are protected from abuse, neglect or family violence.
I find that it is not in the best interests of the children to spend time with or directly communicate with the mother until such time as she has been able to satisfy a prolonged period of abstinence from drugs as evidenced by hair follicle tests. I find further that the paternal grandmother would be supportive of X and Y spending time with their mother upon being satisfied that the mother has undertaken appropriate courses and counselling, and that time spending is informed by consultation with the children’s therapists.
I am satisfied that the communication supported by the Independent Children's Lawyer would be in the best interests of the children and note and accept the evidence of the paternal grandmother that she ensures that the children have a photograph of their mother in their bedrooms.
I make these findings in circumstances where Ms D’s evidence contained in her three reports was not shaken in cross-examination. I find that Ms Adamec, the paternal grandmother, was a reliable witness who had a clear understanding of the children’s need for stability and the additional psychological assistance needed by X and that her evidence in those regards was thoughtful and considered.
I have already referred to my concerns as to the veracity of the mother’s evidence although I accept that she has suffered much trauma from her relationship with Mr Adamec which has impacted on her own conduct.
I am aware that in declining to make an order for time spending with the children, it is likely that further proceedings will be instituted in the future by the mother. It will of course be necessary for her in those circumstances to satisfy the Court that there has been a significant change in circumstance.
Notation (B):
The process by which X and Y are to be informed of the existence of their siblings W and Z.

It was the mother’s case that she should be the one to tell the children of their siblings and that she would do that when she spent time with them. Her position was supported by her mother in her evidence.
W and Z are under the guardianship of the Minister until they attain the age of 18 years.
As acknowledged by the mother’s counsel in paragraph 13 of the written submissions filed 22 September 2021, any introduction of X and Y to their siblings is subject to the agreement of the Department.
The mother eventually conceded in her evidence that she would need the assistance of a child psychologist to assist her in how best to impart the information to X and Y.
I have determined for the reasons given above that the mother’s contact with X and Y should, in the foreseeable future, be confined to the provision of letters, cards, gifts and photographs to be forwarded to them care of the paternal grandmother who in turn should provide those items to the children unless they are age or subject matter inappropriate, in which case the paternal grandmother should advise the mother of that fact.
Nevertheless, Ms Adamec was not opposed to X and Y being advised of the existence of their siblings provided that there was a gradual approach to the concept, with the assistance of a “professional person” and with proper attention being given to the capacity of X and Y to cope with the information.
In her discussions with Ms D for the purposes of the third family report Ms Adamec told Ms D that she felt it would be upsetting for the children to learn of their siblings, and that she was particularly worried about the impact of the knowledge on X’s feelings of anger. In addition, she expressed concern about how she would answer questions from X and Y about the twins, and the impact that such knowledge may have on her relationship with X and Y when they realised that she had not told them earlier.[15]
[15] Family reported dated 2 June 2021 – paragraph 35.
It was the position of the Independent Children's Lawyer that Ms D, following upon consultation with the children’s mental health practitioners, sit down with the children and reveal to them the existence of their siblings W and Z.
In oral evidence on 12 August 2021 Ms D told the Court that she was prepared to impart the information to X and Y, that she would need as much information as possible regarding the twins and that she would then meet directly with X and Y. She said that distress could be caused to the children if they were told of their siblings’ existence in an inappropriate fashion.
In her third report she referred in paragraph 84 to it being unfortunate that she was unable to speak with X’s therapist to obtain some guidance about how to proceed with informing X and Y about their siblings.
The reality of this matter is that the issue of X and Y being informed of the existence of their siblings is going to be determined by the paternal grandmother. I find that she was a credible witness. I accept that she genuinely loves X and Y, that she is very distressed as to the violence, drug use and general dysfunction to which the children were exposed during the time they lived in their parents’ household and that she is determined to provide them with as much stability, support, love and guidance as she is able such that they can achieve their full potential.
I accept her evidence that she is cognisant of the need for them to know of their siblings, and that her concerns as to the impact of that knowledge on her relationship with them as well as their capacity to absorb the information in circumstances where their siblings are in the care of the Department such that arranging any physical meetings may well have its own series of complications, are reasonable.
I am satisfied that the best interests of the children will be met by this issue being determined by Ms Adamec in consultation with appropriate experts. I do not intend to make any formal orders as to the process by which the children are informed of their siblings. As I have said previously herein, it was a matter of significance that arose during the course of the proceedings in respect of which none of the parties sought orders but where, depending on the outcome of the mother’s application for time spending, orders may have been necessary. I do intend to order that Ms Adamec inform the mother when the children have been advised of the existence of their siblings, but will put no time constraint on that process.
Notation (C):
The terms of any restriction that the Court should impose on any contact that may be permitted between the children and their father Mr Adamec.
The evidence before the Court of the mother and of Mr Adamec himself as well as the distressing information imparted to Ms D by X satisfies me that Mr Adamec has a history of drug taking and violence. In addition, his own mother obtained an Intervention Order against him as a result of threats he made against her.
Issues raised by Mr Adamec in his discussions with Ms D were reported by her in paragraphs 56 to 66 of her first report. He reported to Ms D that he had been recently released from jail after almost three months because of being convicted of driving offences, to have been on home detention because of the mother alleging he had threatened her and, when asked if he had been violent in his relationship with the mother he replied “Nah not really”.[16] He reported having last used drugs some three months prior to the assessment interview and to having previously suffered from depression.
[16] Family report dated 30 November 2018 – paragraph 64.
In paragraph 57 of that report Ms D said “[Mr Adamec’s] responses were considered minimising with regard to concerns about his use of violence and illicit substance abuse, with him demonstrating a preference to focus on his concerns about [Ms Donal’s] parenting capacity.”
Nevertheless, prior to the resumption of the part-heard trial in August 2021 Ms Adamec had commenced to allow him to spend time in her home with X and Y. She did so notwithstanding having given an undertaking to the mother that she would not permit such contact. Her explanation for so doing was detailed in Ms D’s third report in paragraph 43 where it was reported that she told Ms D:
…she had not discussed this with her solicitor, explaining she wanted the updated family assessment to occur first. She said her reasons for this had been she worried [Ms Donal] would remain preoccupied with her views around [Mr Adamec] during the assessment rather than the issues of concern about herself.
I accept her evidence that she had discussed the issue with X’s “[L Services]” worker and that her worry, as expressed to and reported on by Ms D in paragraph 42 of the third family report, namely that if something happened to her what would happen to the children, was reasonable in the circumstances of the mother’s seeming inability to cease the use of amphetamines and achieve a level of stability in her life. She described the children being “ecstatic” about spending time with their father and to feeling that it was very important for the children to have at least one parent in their lives.[17]
[17] Family reported dated 2 June 2021 – paragraph 42.
It was unfortunate that she permitted the children to spend time with their father without notice of her intention so to do to the mother’s solicitors. I am satisfied that at least in part that was because she knew that the mother would take action to prevent her doing so if she had knowledge of that intention.
Nevertheless, orders have been made by consent providing for Ms Adamec to have sole parental responsibility for X and Y and for X and Y to live with her. Ms Adamec took appropriate action when the children’s father threatened violence towards her. I accept her evidence that she has made clear to her son that he must abide by her rules with respect to his time with the children, and that she is supported in that regard by family members.
I find that, taking into account the level of responsibility that she has taken for the children’s care since mid-2018 and her commitment to providing ongoing care even in the face of the recent loss of her husband, the children’s grandfather, and her own father, the children’s great grandfather, she would not expose the children to any risk of abuse, neglect or family violence from their father or from anyone else.
She has sought and continues to seek appropriate assistance for X’s serious mental health issues, she has provided stability for the children as described by X in particular to Ms D and has cooperated on a regular basis with X’s school and his therapists to assist as best as she is able in the management of his challenging school behaviours.
Ms D was concerned about the father spending time with the children or making any recommendation in that regard where he had not continued as a party to the proceedings and therefore been unable to be assessed by her subsequent to the first report she prepared in late 2018.
I find that the issue of any restriction on the father’s contact with X and Y should for the most part be left to the discretion of his mother, Ms Adamec. I am satisfied that she is well aware of her son’s failings both with respect to the inappropriate use of drugs and alcohol and also his propensity to violence. I cannot find on any of the evidence that she would expose the children to that conduct.
The reality of this matter is that it was her concerns about that conduct on the part of the father and the impact on the children of their mother’s high level of drug use in particular that led her to become the guardian and day to day carer of both children.
I intend only to order that she not leave the children or either of them in his presence unsupervised by a person over the age of 18 years for a period of twelve months from the date of this order.
Notation (D):
The terms of any injunction that the Court may make with respect to the mother permitting any contact or communication between X and Y and Mr F.
At the time the trial concluded the mother and Mr F were still in, according to the mother, a committed relationship and it was her intention to resume living with him upon his release from prison.
In circumstances however where I have declined to make any order for the children to spend time with their mother, the issue of her permitting Mr F to have contact with X and Y is no longer relevant at this time.
In terms of the question of any communication between the children and Mr F, I would see no harm in the event the relationship continues in his name being included on letters, cards and gifts forwarded by the mother to the children pursuant to these orders or photographs of her together with Mr F being provided to the children via their paternal grandmother if appropriate.
Notation (E):
Any conditions that should attach to the order for sole parental responsibility to be made herein today in favour of the paternal grandmother.
It was submitted on the part of the mother that seven conditions should attach to the order for sole parental responsibility in favour of the paternal grandmother. Those conditions were:
(a)if and when the mother commences spending unsupervised time with the children the paternal grandmother thereafter must consult with the mother in writing to reach agreement no less than fourteen days prior to making any long-term issues, and that thereafter inform the mother of any decision made about long-term issues for the children; and
(b)that the paternal grandmother keep the mother informed should either or both of the children be diagnosed with any serious medical condition requiring hospitalisation, ongoing treatment, or specialist treatment, irrespective of whether the mother is spending time with the children;
(c)for the purposes of the two paragraphs above, the mother agrees to keep the paternal grandmother informed of a current email address;
(d)the mother is at liberty to request from L Services, or any specialist health practitioner who the children consult, a report at her own expense about the children’s condition/progress provided the said practitioner considers that release of such information to the mother is in the children’s interests;
(e)the mother is at liberty to request and that the paternal grandmother do ensure that the children’s school/s and clubs are authorised to release to the mother at the mother’s own expense:
(i)copies of the children’s school reports; and
(ii)copies of the children’s school and club photographs.[18]
[18] Written submissions on behalf of the mother filed 22 September 2021 – paragraphs 3.
It was submitted on behalf of the paternal grandmother that although she did not strongly speak against the orders sought by the mother with respect to the conditions on the order for sole parental responsibility, it was her position that it was more appropriate for there to be an order simply granting her sole parental responsibility for the children.[19]
[19] Written closing submissions of the paternal grandmother filed 12 October 2021 – paragraphs 1.3 and 1.4.
It was her position that she was concerned, if there were restrictions on her exercise of parental responsibility, that the mother would continuously assert that she was failing to comply with orders and/or would continue to criticise her parenting and would seek to use one or both of those issues as basis for further litigation.[20]
[20] Written closing submissions of the paternal grandmother filed 12 October 2021 – paragraphs 1.4.11.
It was the position of the Independent Children's Lawyer in his closing submissions that there should be no conditions attached to the order for sole parental responsibility.[21]
[21] Written submissions on behalf of the Independent Children's Lawyer’s filed 21 September 2021 – page 11, paragraph 4.
The mother was highly critical of the paternal grandmother throughout the proceedings. She expressed on more than one occasion her belief that the paternal grandmother was deliberately trying to exclude her from the lives of the children.
Her evidence regarding her views of and towards the paternal grandmother lacked insight as to the reasons the children had initially gone into the care of the paternal grandmother and into the ongoing need of both children for a sense of love, security and stability. Her evidence indicated a completely self-focussed state of mind.
I accept the evidence of the paternal grandmother as to the need for her to be able to provide the stability needed by the children and make decisions with regard to matters such as health and education unfettered by potentially unhelpful interference on the part of the mother. I find such an approach to be reasonable and in the best interests of the children.
It is however appropriate for the mother to be informed of any serious accidents, injuries or health conditions that may be suffered by the children or either of them from time to time and associated details as to their treatment and for the mother to be provided with copies of each of the children’s school reports as they become available from time to time.
I am satisfied that in the circumstances of this case and taking into account the fractious relationship between the mother and the paternal grandmother, that the children’s best interests would be met by those reports and the health information being provided to the mother by the paternal grandmother rather than the mother having her own lines of communication with medical and health practitioners or the children’s school.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 24 May 2022

File number(s):	ADC 2530 of 2014
Judgment of:	MEAD J
Date of judgment:	24 May 2022
Catchwords:	FAMILY LAW – PARENTING – Complex and protracted proceedings including a part-heard trial – Where there were initial consent orders made as between the mother and the father on 16 March 2015 – Where the current proceedings began as between the mother and the father – Where the father was removed as a party as a result of non‑participation – Where the paternal grandmother was added as a respondent – Where the maternal grandmother was later added as another respondent – Where the children were exposed to abuse, neglect and family violence in the household of their parents and when in their parents’ respective care post-separation – Where both parties engaged in serious drug use and where the father inflicted serious domestic violence on the mother – Where the mother’s drug use was of significant importance during the course of the proceedings and the trial – Where the children have been residing with the paternal grandmother since 21 June 2018 – Where X in particular now suffers significant mental health and behavioural challenges as a result of his childhood trauma – Where the paternal grandmother facilitates the necessary psychological assistance for X – Where the mother gave birth to twins during the course of the proceedings – Where those children were taken into care by the Department for Child Protection and are under the guardianship of the Minister until they attain the age of 18 years – Where the children the subject of these proceedings are not aware of the existence of their twin siblings – Where the application of the maternal grandmother was resolved by way of consent order on 19 August 2021 – Where there were only five discrete issues remaining for determination as at the time judgment was reserved – Where final orders have previously been made by this Court as to sole parental responsibility and “lives with” arrangements – Where the Court cannot make a finding that it is in the children’s best interest to spend time with the mother at this time – Where the mother is permitted to communicate with the children by way of age and content appropriate letters, cards, gifts and photographs
Legislation:	Family Law Act 1975 (Cth) ss 60(B)(1), 60(B)(2), 60CA, 60CC(2), 60CC(3), 61DA, 61DA(1), 61DA(2), 61DA(4)
Division:	Division 1 First Instance
Number of paragraphs:	257
Date of hearing:	13-16 July 2020, 12-13 August 2021 and 21 October 2021
Place:	Adelaide
Counsel for the Applicant:	Ms James
Solicitor for the Applicant:	Alex Mandry Legal Group
Counsel for the Respondent:	Ms Boyle
Solicitor for the Respondent:	Boylan Lawyers
Counsel for the Independent Children's Lawyer:	Mr McQuade
The Independent Children's Lawyer:	Nicholas Eid Lawyer

ADC 2530 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DONAL Applicant
AND:	MS ADAMEC Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MEAD J
DATE OF ORDER:	24 MAY 2022