Shedlock & Shedlock

[2021] FCCA 502

FEDERAL CIRCUIT COURT OF AUSTRALIA

Shedlock & Shedlock [2021] FCCA 502

File number:	MLC 10887 of 2019
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – parenting – parental responsibility – where applicant father has discontinued proceedings – where mother has sole parental responsibility – where independent children’s lawyer seeks order that father have no face to face time whatsoever.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC.
Number of paragraphs:	48
Date of hearing:	25 November 2020
Place:	Melbourne
The Applicant:	Appeared In Person / Discontinued
Solicitor for the Respondent:	Myers Family Law
Counsel for the Respondent:	Ms R Dart
Solicitor for the Independent Children's Lawyer:	Robindale Legal
Counsel for the Independent Children's Lawyer:	Mr J Korke

ORDERS

MLC 10887 of 2019

BETWEEN:

MR SHEDLOCK

Applicant

AND:

MS SHEDLOCK

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.All previous orders relating to the children X born in 2005 and Y born in 2010 (‘the children’) be discharged.

2.The Mother have sole parental responsibility for the children.

3.The children live with the Mother.

4.The Father be at liberty to telephone the children each Tuesday commencing at 6.30pm and concluding by no later than 7.00pm, with the Father to place the call to the children's mobile phone and the Mother to use her best endeavours to facilitate the call NOTING THAT the Mother is to turn the children's mobile telephone on only for the purpose of facilitating the telephone communication pursuant to this order and will turn the mobile telephone off at the conclusion of the telephone call and will not permit the children access to the mobile telephone at any other time.

5.The Mother shall be permitted to travel to and from the Commonwealth of Australia with the children or either of them at any time for up to 6 weeks in any calendar year.

6.The Father be and is hereby restrained from:

(a)Communicating with the children other than as set out in these orders;

(b)Using the children or either of them to relay messages to the Mother;

(c)Discussing these proceedings or the spend time arrangements with the children or either of them;

(d)Showing the children or either of them any court order or court document;

(e)Questioning or discussing with the children or either of them matters related to the family law proceedings between the parents, or attempt to influence the children's views in relation to parenting arrangements.

(f)Criticising, denigrating, or speaking negatively about the Mother, the Mother's partner or other members of the Mother's family in the presence of or within hearing of the children or either of them or allowing any other person to do so.

(g)Using third parties to relay messages to the mother.

7.Pursuant to Section 68B of the Family Law Act 1975 the Father shall be and is hereby restrained and injuncted from attending at, approaching or being upon the premises of the school attended by the children.

8.These orders stand as authority for each party to access any of the children's schooling information including but not limited to school reports, newsletters and photograph order forms.

9.The Mother is to advise the Father in writing of any medical emergency in relation to the children or either of them, as soon as reasonably practicable and by sending details of same.

10.Save as provided in these orders the Father not spend any time with the children or either of them, or communicate with the children or either of them, unless:

(a)that time, the circumstances and conditions of that time, including whether or not it should be in the presence of any person, has been agreed between the parents from time to time in writing or text message or email beforehand; and

(b)in the event of a dispute as to whether or not any particular time circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.

11.The Independent Children’s Lawyer bring these orders to the attention of the Father.

12.All extant applications and responses are otherwise dismissed.

AND THE COURT NOTES THAT:

A.Orders 3 to 9 herein were orders made by consent of the Mother and Independent Children’s Lawyer on 25 November 2020 when further determination of the dispute between the Mother and the Independent Children’s Lawyer was reserved.

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 under the pseudonym Shedlock & Shedlock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. The remaining dispute in this matter is unusual.  The parties to the proceedings are now only the Respondent Mother Ms Shedlock (‘the Mother’) and the Independent Children’s Lawyer (‘the ICL’).  The proceedings concern two children X who is 11 and Y who is 10 (‘the children’).  The dispute is between the Mother, with whom the children live, and the ICL.  The Applicant Father Mr Shedlock (‘the Father’) is aged 45 and the Mother is 43.  The parent’s commenced cohabitation in 2008, married in 2010 and separated in August 2018.  The children lived with the Mother following separation.

2. The Family Report and the evidence refers to the parents and the children by name but these reasons and quotations from the report have adopted the nomenclature of Mother and Father and younger and older child instead of the parent’s and children’s names.

3. The Father, who had been the Applicant and who initiated the proceedings on 25 September 2019, filed a Notice of Discontinuance on 2 September 2020.  The Father’s application had been for an equal time parenting arrangement.  On 7 September 2020 the ICL wrote to the Father outlining details of where he could obtain independent legal advice regarding the legal effect of his Notice of Discontinuance.  On 6 November 2020 the ICL advised the Father that the matter was listed for final hearing on 25 November 2020.  That listing was during a one week circuit list in a regional New South Wales city. 

4. On 25 November 2020, notwithstanding the filing of a notice of discontinuance, the Father appeared when the matter was called.  The hearing was conducted over video link on Microsoft Teams.  When the matter was called over the Father made clear his intention not to participate further in the proceedings and he did not participate further. 

   THE DISPUTE BETWEEN THE ICL AND THE MOTHER

5. The ICL and the Mother were in substantial agreement about the orders that should be made.  Those parties agreed that the Mother should have sole parental responsibility for the children and that they should live with her.  They agreed that the Father should communicate with the children by telephone once per week. 

6. The point of disagreement was that the Mother sought an order to the effect that the children spend other time with the Father as agreed between the parents in writing from time to time.  The ICL by oral application sought a further order to the effect that the Father have no contact with the children save for the weekly telephone call.

7. The ICL is a careful and experienced family law practitioner and she appeared by counsel and attended the hearing.  It was clear to me that the ICL was very concerned about the children’s welfare in the care of the Father.  The ICL had good reason to be concerned.  The Mother’s evidence was not challenged by the Father or by the ICL.  The ICL was concerned, in part, because of the Mother’s unchallenged evidence.

8. I accept the Mother’s detailed and precise evidence as set out in her affidavit of 27 October 2020.  It is unnecessary to repeat that evidence here.  I also accept into evidence the email from the ICL on 17 December 2020 and the notes of the Father’s treating psychologist and I mark that ‘ICL1 of 17 December 2020’.

9. I find that the Father has, at almost every turn, been difficult and obstructive to deal with when the Mother has attempted to implement the court orders for the children’s time with him.  He has on occasions simply without notice refused to collect the children from school for his court ordered time.  He has on occasions attempted to negotiate his time outside the court orders directly with the younger child.  He has over held the younger child and failed to return him, instead taking the child to the police station where the child is expected to tell the police officer that he wishes to spend more time with the Father.  When the Father did spend time with the children the Father vented his anger with the Mother to the children and on occasions became angry at the children. 

10. There are real questions about the Father’s mental health and he has not complied with orders as to the provision of a report concerning therapy with his treating psychologist.  The notes of ICL1 show that on 26 August 2019 his treating psychologist told him she does not prepare reports.  He presented to his psychologist as angry and was not prepared to provide his treating psychologist with court documents that would include the Mother’s documents.

    THE FATHER’S TIME WITH THE CHILDREN

11. I find that the Mother, in difficult circumstances, promoted the Father’s relationship with the children as best she could.  The Father placed pressure on the children to agree with the spend time and living arrangements that he wanted.  On occasions the children were distressed and upset by the Father’s behaviour during the time that he did spend with them.  The Father emotionally abused the children by threatening not to see them if things did not go as he wished at that time.  The Father was frequently angry with the children during the time he spent with them. 

12. The police had applied for and obtained a family violence order for the protection of the Mother against the Father.  The Father was charged with and pleaded guilty to breaches of that family violence order.  As a result the Father was placed on a good behaviour bond with a condition that he seek psychological therapy.  There is no evidence that the father has completed a course of psychological therapy and I find that he has not done so.

13. What the Mother has had to endure, and raise the children in the face of, during and after the parents relationship, is conveniently described in the detailed and careful family report dated 11 June 2020 at [21]:

    [21](The Mother) alleged that, during the relationship, she was the victim of long-standing coercive controlling family violence by (the Father).  She alleged that, post separation, she has been harassed, threatened, intimidated and emotionally denigrated by (the Father) including in the presence of the children and in breach of the family violence order.  She further alleged that (the Father) had made false allegations to police, including fabricating a witness, in an attempt to obtain a family violence order against her. 

14. I do not find that the Father “fabricated a witness.”  He nominated a witness in his false complaint to the police.  That person did not witness the behaviour alleged by the Father.  Save for that the broad description is, on the unchallenged evidence, accurate.

15. In February 2020, after the Mother had contacted the police to report breaches of a family violence order, the Father, without notice to the Mother simply withdrew from making himself available to spend time with the children.  He commenced to comply with the orders after about five weeks and was seeing the children at the time of the family report interviews. 

16. On 2 September 2020 the children spent time with the Father.  It is the unchallenged evidence of the Mother that the older child informed her that on that occasion that the Father became angry when the elder child tried to defend the Mother in the face of the Father’s denigration of her.  The elder child refused to attend time with the Father thereafter and he never requested that the child attend again.

17. On Wednesday, 2 September 2020 the children spent time with the Father from after school until 8pm.  The Mother collected the children from the Father’s home and asked if they had had a good time and both children started crying.  The older child said, “stop telling mum what dad said” and “if you tell the bad things dad said then we’ll never get to see him again”.  The younger child told the Mother that, “the last thing dad said to us tonight was that, this Saturday when we visit dad, will be the last time we would probably ever see him”.  The Mother tried to calm the child and told him that it must have just been a misunderstanding.

18. That same evening shortly after the children had left his care at 8:57pm the Father filed his Notice of Discontinuance.

19. On 5 September 2020 the younger child attended the Court ordered time the Father and the older child did not.  The Father returned the younger child with all of the older child’s belongings and possessions that had remained with him.

20. The next occasion for spend time was on Wednesday, 9 September 2020.  The court ordered Wednesday time was from after school until 8pm.   The younger child sent the Father a message saying, “hey dad am I coming on Wednesday or not because I really want to”.  The Father then attempted to arrange directly with the then nine-year-old child, overnight arrangements contrary to the court orders.  The Mother acquiesced in the child’s request for overnight time and then the Father sought an alternative pickup time as well.  The Mother expressed exasperation to the Father and asked that he not attempt to arrange things with the child and insisted on the usual changeover place.  The Father did not reply and the time with the Father did not take place.

21. The last record of contact with his psychologist was on 10 September 2020.  A positive note was that he told his psychologist that he was undertaking an anger management course online.

22. I find that the time of the filing of the Notice of Discontinuance was not accidental or random.  It followed an unhappy occasion of time for the Father and the children.  It was followed up within days of attempts by the Father to arrange a time to suit himself by direct arrangements with the nine year old child and at times that were contrary to the Court orders.  The Father would have been aware of, but I find was indifferent to, the stress and difficulty that this would cause the children’s Mother who was responsible for the day-to-day care of the children.

23. The Father intentionally left the Mother and the children, and in particular the younger child, in a state of uncertainty, as to whether he would collect the children from school to exercise his time or not.  The predicament that the Father placed the Mother and the children in can be seen from the desperate text message the Mother sent the Father on 14 October 2020, the Thursday before the weekend the Father was due to spend time pursuant to the then extant orders.

    “Mr Shedlock can you please let me know what you want to do this weekend or if you are picking up (the younger child) tonight.  I haven’t said you are so he plans on coming home on the bus.  It’s been 2 years now and you should be done with punishing me, now you are just punishing (the younger child).  He needs to know what’s going on and he knows you need to tell me.  He told the ICL that I’m trying to communicate but you won’t.  It’s his biggest wish.  Please stop making it so hard.  I’m the kids mum and you can’t avoid having some sort of contact with me.  If you plan on turning up at school today can you at least let me know that, so I can let the kids know. (The younger child’s) ph is always on so you can call any time and he knows he can call you.  Please try to be reasonable for the kids sake.”

24. The Father did not respond.  The Mother again attempted, by text message, to tell the Father that the younger child would like to spend time with him and to confirm arrangements for that weekend.  The Father did not reply and he did not pick up the child from school that day for the weekend as the orders provided.

25. As at the hearing on 25 November 2020 the Father had not spent time with the children or either of them since October, for the younger child, and September for the older child.  It must be noted that the Father’s conduct is with the benefit of the family report dated 11 June 2020.

    THE FATHER’S MENTAL HEALTH

26. The family report interviews were undertaken on 4-6 May 2020.  It being COVID-19 times the parents were interviewed by telephone but the children were seen face-to-face.  The report is dated 11 June 2020 and was released to the parties soon after.  I repeat some parts of that report.  These matters are relevant to the dispute between the ICL and the Mother.  I bear in mind that the younger child was about 9 ½ years old at the time of the family report interviews.  It is apparent that the 9 ½ year old child then bore the burden of the impossible task of making his Father happy.  The interviews were before the Father caused the total breakdown of the spend time arrangements in September and October 2020.  The bolding is the Courts.

    [81]When asked about his views about future time with (the Father), (the younger child) said “I want to get to spend time with him more, I guess”.  When reflected back that he wanted more time with his father, (the younger child) said, “yes, because I want for him (the Father) to be happy and for me to be happy and spend more time together”.  When asked if (the Father) would be happier the younger child said, “yes, he would definitely be happy as he really wants us over”.

    [82]…(the younger child) said “I feel a bit responsible for dad” and “I want to be with him to help him feel happier”.

    [89]If (the Mother’s) allegations of family violence, including post separation family violence, by (the Father), are found to be correct, there may need to be ongoing limitations in relation to (the children’s) time with their Father.  This may be required to help ensure that (the children) are not exposed to coercive controlling behaviours by (the Father) toward (the Mother) and directly to them, including by exposure to parental denigration of their mother.  If (the Mother’s) account of (the Father) is correct, (the Father’s) current motive may be to continue to control or harm her which for the coercive controlling perpetrator can be indistinguishable from their role as a parent.

    [91]…(the Father) has pleaded guilty to breaching the family violence order and, in spite of this he does not take any responsibility for perpetrating family violence towards (the Mother), but presents as highly blaming toward her.  If (the Father) is not willing to accept and take responsibility for perpetrating coercive controlling behaviours and work to address this it may be an ongoing problem with detrimental impacts on the children and (the Mother).

    [95]In spite of the concerns raised, both (the children) spoke about having had positive and enjoyable experiences in (the Father’s) care and their ongoing time and relationships with him appear important to them.  …(the children) need to spend regular child focused time with (the Father) to nurture their relationship bonds.

    [96]In regard to the children’s views, (the older child) expressed a degree of satisfaction with the current time she has with (the Father).  …(the younger child) is a sensitive child who is protective of and concerned about (the Father’s) needs and unlikely to express his needs if they diverge from his father’s.   However, (the younger child) also appeared genuine when he spoke about wanting a bit more time with (the Father)  and it appeared more overnight time than is currently provided.  

    [97]In the family consultant’s view,  it would be highly beneficial,  particularly for (the younger child), and the family situation, if future parenting arrangements are clearly defined and structured and there is no scope for (the younger child) to be  determining any extra time arrangements.  While it may appear child focused the children to be able to determine their time with a parent needing to do so firmly places them in the middle ground of the parental conflict and (can) be an emotional burden.   

    [100]In regards to consideration about (the children’s) time with (the Father) …in the family consultant’s view, it would appear critical that (the Father) provide information about his current mental health status and evidence of a sustained course of psychological counselling.  It is not evident that (the Father) has sustained an engagement in psychological counselling or treatment which reportedly was a condition of the good behaviour bond and would evidently benefit him.  An evaluation of (the Father's) mental health appears required for the Court's consideration of the matter.

    [101]Due to the uncertainty about (the Father's) present mental health status, the family consultant is not in a position to provide definitive recommendations about spend time arrangements…

    [102]If the Court is satisfied that (the Father) does not have unaddressed mental ill health issues that would adversely impact on his capacity to provide an emotionally and physical safe environment for (the children), that they spend time with him each alternative weekend and for dinner once a week or fortnight and during school holidays…

    (emphasis added)

1. Following the release of the family report the parties came before the court for directions on 30 July 2020 and the parties were represented by solicitors and counsel.  Final property orders were made by consent.  An order for an ICL was made and other relevant orders included the following:

   THE COURT ORDERS THAT:

   3.That the children’s time with the father be with Ms B (or such other person agreed between the parties) being in substantial attendance, save for 5, 8 and 22 August 2020 which shall be supervised by her.

   (orders 4-11 pertain to filing of trial material)

   IT IS ORDERED BY CONSENT:

   1.        That all previous parenting orders be discharged.

   2.        That the father forthwith do all acts and things necessary to enrolling and complete a behavioural change program and provide the mother's solicitor evidence of his successful completion of this course.

   3.        The father continued to attend upon Ms C, Registered Psychologist for the purpose of psychological counselling as recommended at paragraph 107 of the family report and provide to the court a report from her not less than 7 days prior to the adjourned date addressing:

   a.the dates on which the father has attended for therapy and the duration of each session;

   b.the goals of such therapeutic therapy and the father's progress in achieving such goals;

   c.any recommendation as to further therapy or other interventions that may assist the father;

   d.        any other matters the treating psychologist considers relevant.

   4.That the father have leave to provide the family report dated 11 June 2020 Ms C.

   5.That each party enrolling and complete soon as practical a parenting after separation course and provide the other parent with evidence of their successful completion of same.

   6.        That (the Children) live with the mother.

   7.        The children spend time with the father, subject to order 8, as follows:

   a.each alternative Saturday from 9 AM to 8 PM commencing 8 August 2020;

   b.each Wednesday from the conclusion of school (or 3:30 PM if not a school day) until 8 PM, commencing 5 August 2020.

   c.        And at any other time as agreed by the parties.

   8.        (telephone time)

   9.        (changeovers at a nominated car park and otherwise shall occur at school)

   10.      (medical)

   11.That pursuant to s 68B, the children's parents be and are hereby restrained from:

   a.        Using the children or either of them to relay messages to their parents;

   b.Discussing these proceedings or the spend time arrangements with the children or either of them;

   c.Showing the children or either of them any court order, the contents of the evidence (including the Family Report) or any other court document;

   d.Questioning or discussing with the children or either of them matters related to the family law proceedings between the parents, or attempt to influence the children's views in relation to parenting arrangements;

   e.denigrating or speaking negatively about each other, their partners or other members of their families in the presence of or within the hearing of the children or either of them or allowing any other person to do so.

   f.        Using third parties to relay messages to the other parent.

   12.That each parent is to forthwith download the 'Our family Wizard' App and thereafter, except in the case of emergency, or communication between the parties is to be via this App.

   (orders 13-23 omitted)

2. The Father did not file a report from a treating psychologist or any.  I again note his psychologist’s notes show she told him she does not write reports.  I infer that circumstance and the Father's conduct over September and October including the reported end of his relationship with his previous partner in the context of family violence, the filing of the Notice of Discontinuance and the father's presentation and demeanour on 25 November 2020 seriously concerned the Mother and the ICL.  Further there is other evidence that troubles the Mother and ICL and it is unnecessary to repeat that evidence in these reasons.  In those circumstances the ICL seeks an express order that the Father not spend time with the children.

3. The ICL pressed that further assistance be obtained from the family consultant in the circumstances of the events since the family report interviews in May before a decision on the remaining dispute was made.  On 25 November 2020 I ordered that the family report writer be requested to prepare an addendum report in the event she had further views or comments that would assist the court in the context of the dispute between the mother and the ICL as to whether the father should be permitted to spend time with the children as agreed in writing with the mother or not at all and that the further dispute be determined on the papers.

4. I also ordered that until further order any agreement between the Mother and the Father as to the Father's time with the children be recorded in writing/text/email beforehand and that all extant orders (as to the father's time) were discharged.

5. I then made final orders by the consent of the Mother and the ICL that the Mother have sole responsibility for the children, that they live with her, that the father be at liberty to telephone the children each Tuesday between 6:30pm and 7pm and noting that the mobile phone to be used would only be turned on and able to facilitate a call from the Father at those times and the Father was restrained in the same terms as paragraph number 11 of the orders by consent on 30 July 2020 as recited above.

   THE FAMILY REPORT ADDENDUM

6. As requested the family report writer prepared a further addendum to the report.  That addendum is helpful.  The report writer addressed the remaining parties' proposals by addressing the benefits and barriers of each.  I will only repeat part but all are relevant.

7. The Family consultant opined that benefits of the ICL proposal included that:

   [3]…It appears that (the Mother) is sometimes pressured by (the younger child) particularly, to spend time with (the Father).  Overall, (the Mother) may be placed in a situation where she may allow the children to spend time with (the Father) when it is not in their interests or emotionally and potentially physically safe for them to do so.

8. The family consultant opined that the benefits of the Mother's proposal included that:

   [11](The Mother) is the expert in her family situation and her views should be given weight and consideration.  (The Mother's) proposal does not specify any spend time arrangements with (the Father) and her competent capacity to manage the family situation needs to be valued and respected.  If (the Mother) were to believe that either (of the Children) had been placed in an emotionally harmful situation, at any stage, she would cease time altogether which is a protective factor.

9. The family consultant concluded:

   [18]If the court were to determine that the children spend time with the father, as agreed between the parents in writing, that it be specified that a responsible adult needs to be in substantial presence.

10. I find that there is no question that the mother is capable of acting assertively to protect the children when necessary.  She has conducted this litigation and sought different orders to those sought by the Father.  She has in the past reported the Father's behaviour to the police which assisted the police obtain a family violence order on her behalf.  She has reported breaches of the family violence order to the police that resulted in the Father being charged and dealt with by the Magistrates Court for the criminal offence of breach of a family violence order.  I find that if the Father's behaviour warranted a report to the police in the future the Mother would do so.

11. In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of the children is the paramount consideration.  In determining what is in the children's best interests I must consider the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to, abuse, neglect or family violence.  When considering the benefit to the children of the meaningful relationship with both parents and the need to protect the children I must give greater weight to the consideration of protecting the children.  Those matters are my primary considerations.

12. In addition I am required to take into account the list of matters set out in section 60CC(3) of the Family Law Act 1975 (Cth) (‘the Act’). I have not been addressed by the parties, or the remaining parties, in regard to specific section 60CC(3) matters. It was unnecessary that they do so but I do take those matters into account.

13. The bottom line is that there is an unacceptable risk that the children may be exposed to psychological or physical harm in the care of the father depending upon the circumstances at the time.

14. The Mother recognises this risk and the question I have to determine is whether she will only permit the father's time with the children when it is safe to do so and whether from time to time she will place sufficient limits and qualifications to any time the Father will spend with the children, or either of them, as to ensure their psychological and physical safety.

15. The further difficulty is how the order that the ICL seeks would be enforced.  As I understand the ICL's position, she has sufficient confidence in the Mother's parenting ability and common sense that she does not doubt that the mother would comply with any court order regardless of whether there was a contradictor available to enforce the order or not.  There is some risk in permitting any time, ever, between the children and the Father.  The order that the Mother seeks effectively says to the Court, the children and the world that she will from time to time make a careful judgement as to whether it is safe for the children to spend some time with the Father.

    CONCLUSION

16. In the end I find that the Mother's attitude to the responsibility of parenthood is such that I find that “the Mother is the expert in her family situation and her views should be given weight and consideration.  The Mother's proposal does not specify any spend time arrangements with the Father and her competent capacity to manage the family situation needs to be valued and respected” (this is from paragraph [11] of the family report writer’s addendum).

17. The orders that I will make will empower the Mother to set such times, limits and conditions upon the children's time with the Father before any such time occurs as she sees fit to ensure their psychological and physical safety.  It may well be that the mother does not agree to any time at all between the Father and the children or may agree to some limited time and then having observed the success or otherwise of that time determine that there should not be further time.

18. Dealing with the Father at all is difficult.  The Mother asks that she be permitted to undertake that burden.  I find that is in the children's best interest that she be permitted to do so.

19. However I propose to make a slightly different order than that which the Mother seeks in an attempt to make it more clear on the face of the order that the Father is not permitted to spend any time with the children unless that time, circumstances of the time and conditions if any of that time, has been agreed in writing or text message or email no less than seven days beforehand, and in the event of a dispute as to whether or not any particular time circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.  However, I have not given notice to the parties of my intention and I will do so and hear what they have to say about that order.

20. The Mother's outline of case sought costs of the proceedings relating to the children but that was not pressed on 25 November 2020 and in all the circumstances, including the very real question marks over the Father's mental health, I do not propose to make an order for costs.

21. I do intend that there be one order covering the children's arrangements and hence I will repeat orders 7 to 14 of the orders made by consent between the Mother and the ICL on 25 November 2020 together with the further order that I propose as a consequence of determining this dispute.

22. Hence I have not made the order as sought by either party but will consider adding to the existing orders the following orders after I have heard what they say about it.

    1.Save as provided in these orders the Father not spend any time with the children or either of them, or communicate with the children or either of them, unless;

    (a).that time, the circumstances and conditions of that time, including whether or not it should be in the presence of any person, has been agreed between the parties from time to time in writing or text message or email beforehand; and

    (b).in the event of a dispute as to whether or not any particular time circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.

    2.        All extant applications and responses are otherwise dismissed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       17 March 2021