Diop & Gueye

[2022] FedCFamC2F 460

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Diop & Gueye [2022] FedCFamC2F 460

File number(s):	SYC 9309 of 2020
Judgment of:	JUDGE MONAHAN
Date of judgment:	10 February 2022
Catchwords:	FAMILY LAW – parenting orders – two children aged 3 and 4 years old – children to live with the mother – children to spend supervised time with the father – Covid-19 – where one child has G6PD deficiency – father to complete a rapid antigen test or PCR test prior to spending time with the children – no unacceptable risk
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 60CC, 61DA, 64B, 65D
Cases cited:	McCall & Clark [2009] FamCAFC 92
Division:	Division 2 Family Law
Number of paragraphs:	80
Date of last submission/s:	10 February 2022
Date of hearing:	10 February 2022
Place:	Sydney
Solicitor for the Applicant:	Mr Kassira
Counsel for the Respondent:	Ms Friedlander
Counsel for the Independent Children's Lawyer:	Ms Treherne

ORDERS

SYC 9309 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR DIOP

Applicant

AND:

MS GUEYE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MONAHAN
DATE OF ORDER:	10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.All extant applications be adjourned to this Court on 18 July 2022 at 10:00am for directions (“the directions hearing”).

2.Any Application in a Proceeding or Objection to Subpoena made returnable by the Registry from the date of these Orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

3.These Orders are to be read in conjunction with paragraphs 12 and 13 of the Orders made on 1 February 2021 and the Orders made on 19 March 2021.

4.The children X born 2018 and Y born 2019 (“the children”) live with the mother.

5.Upon a vacancy becoming available at the B Contact Centre, the children spend time with the father in accordance with the Orders made on 19 March 2021.

6.Within twenty-four (24) hours of the time that the children are due to spend with the father, the father undergo and complete a Rapid Antigen Test (“RA test”) in the presence of an adult. The father is to take photographic evidence of him completing the test and the results of the test and is to provide that evidence forthwith to the mother through her solicitor by email that includes an appropriate time and date stamp.

7.In the alternate to paragraph 6 herein, the father undertake a Polymerase Chain Reaction test (“PCR test”) not more than four (4) days before the time that the children are to spend with the father, with the test results to be provided forthwith to the mother through her solicitor by email that includes an appropriate time and date stamp.

8.If the RA test in paragraph 6 or the PCR test in paragraph 7 herein produces a positive result, the time that the children are to spend with the father shall be suspended for that visit only.

9.The father is to have two (2) doses of a COVID-19 vaccination before spending time with the children, and is to obtain a third booster vaccination within twenty-eight (28) days of today’s orders, if already double dose vaccinated, or within twenty-eight (28) days of becoming eligible for the booster vaccination in accordance with NSW Health guidelines.

10.At all times the children are spending time with the father, the father is required to:

(a)strictly adhere to all NSW Health guidelines;

(b)only provide food to the children which have been supplied by the mother; and

(c)strictly adhere to any further or additional requirements as required by B Contact Centre.

11.Each party is hereby restrained by injunction from:

(a)showing the children any documents in these proceedings, or discussing these proceedings or any other legal proceedings in which either party is or has been a party in the presence or hearing of the children, and each party shall use their best endeavours to ensure that no other person does so in the presence or hearing of the children and immediately remove the children from any environment that exposes them to the same; and

(b)striking or applying any form of physical chastisement to the children, and each party shall use their best endeavours to ensure that no other person does so and immediately removes the children from any environment that exposes them to the same.

AND THE COURT NOTES THAT:

A.These Orders were made by the Court today following a contested interim hearing. Written reasons will be provided to the parties in due course.

B.Chambers have been advised by Court Children’s Services that it is anticipated that the Family Report interviews will occur in April 2022 with a completion date of mid to late May 2022.

C.The parties are to engage in mediation following the release of the Family Report in an attempt to resolve any outstanding issues.

D.The purpose of the directions hearing is to:

(i)consider the family report or, if not yet released, the likely release date;

(ii)consider the outcome of any mediation; and

(iii)in the event that the parties remain in dispute, ascertain the ambit of the dispute and make further directions.

E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure B and those particulars are included in these orders.

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 Diop & Gueye has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

1. These reasons are being delivered pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). They are provided to explain the interim orders made by the Court late on 10 February 2022 following an interim hearing described further below.

2. In this matter the Court is being asked to decide certain interim parenting matters relevant to the family law dispute between MR DIOP (“the father”) and MS GUEYE (“the mother”).

3. The relevant children of the relationship are X born 2018 (“X”) and Y born 2019 (“Y”), (collectively, “the children”).

4. The Court is asked to determine in this interim decision whether the children spending supervised time with the father at a contact centre poses an unacceptable risk of harm to either or both of the children:

   ·if the answer is yes, then a further question arises as to whether there any steps that can be taken to mitigate those risks; and

   ·if the answer is no, then a further question arises as to what other ways can the children spend time with the father?

5. I note that both parties were legally represented at the interim hearing; the father by his solicitor, Mr Kassira and the mother by Ms Friedlander of Counsel. Ms Treherne of Counsel appeared as the Independent Children’s Lawyer (“ICL”).

6. I note at this point of my reasons that the ICL supports the retention of the parenting orders made early last year that required the children to spend time with the father at a contact centre subject to a further order for the father to undertake a ‘Covid-19 test’ prior to each visit. To-date, no time has occurred at the relevant contact centre. 

   BACKGROUND

7. The father was born in Country C in 1991 and is currently aged 30 years old.

8. The mother was born in Australia in 1991 is currently aged 31 years old.

9. The mother moved to Country C with her family as a young child and met the father there when they were both teenagers. The mother returned to Australia in 2011.

10. The parties married in late 2016.

11. As stated above, there are two children of the marriage: X, who has turned 4, and Y, who turned 3 recently.

12. Y has been diagnosed with glucose-6-phosphate dehydrogenase (“G6PD”) deficiency. G6PD deficiency is a lifelong genetic disorder that causes red blood cells to break down when exposed to certain foods, medicines or chemicals (“the triggers”). According to Healthdirect Australia,[1] a national public health information service, patients with G6PD deficiency:

    are normally healthy … but must avoid [the] triggers. The breakdown of red blood cells, called ‘haemolysis’, can lead to anaemia (lack of red blood cells) and jaundice (the yellowing of skin and eyes). [The] triggers can cause red blood cells to be destroyed faster than they can be replaced. In this case, a person with G6PD deficiency can develop acute haemolytic anaemia (AHA), which can be life-threatening, especially in children.

    [1] See (accessed 10 February 2022).

13. The parties separated in 2019, shortly prior to Y’s birth. The father gives evidence that the mother did not inform him about Y’s birth. The mother also withdrew support for the father’s partner visa.

14. Since separation, the children have spent no time with the father apart from some audio/video communication.

15. In mid-2019, an Apprehended Domestic Violence Order (“ADVO”) was made against the father (on a ‘without admissions’ basis) for the protection of the mother, prohibiting or restricting the behaviour of the father for a period of two years. The ADVO has now expired. Shortly after separation the father was charged with allegedly assaulting the mother but gives evidence that he was subsequently found not guilty.

16. The father is currently in Australia pursuant to a visa. He is not able to work or study but is entitled to a Medicare card. The father has also submitted to random drug and urinalysis tests and each have returned negative results.

17. The father commenced these parenting proceedings with his Initiating Application filed on 23 December 2020.

18. The proceedings first came before me in a duty list on 1 February 2021. Orders were made on that occasion for the appointment of an ICL, for the mother to file her responding material, for the parties to attend a Child Dispute Conference and for the matter to be set down for an interim hearing on 19 March 2021. 

19. The mother filed her Response, supporting Affidavit and Notice of Child Abuse, Family Violence or Risk on 2 March 2021.

20. On 19 March 2021, the Court ordered the children to spend supervised time with the father at a contact centre. Those Orders are reproduced in Schedule 1 to these reasons. Despite these interim orders, the supervised time had not yet commenced by the time of the further interim hearing listed on 10 February 2022. This delay is due to a combination of factors including shutdowns due to the Covid-19 pandemic and the mother’s reluctance to allow the children to attend the contact centre for fear of catching Covid-19 which she believes, if caught, may have a detrimental effect on Y’s health.

21. On 13 September 2021, the Court ordered the mother to obtain a referral to a medical specialist to support her assertion about the alleged risk to Y in attending the contact centre, which she appears to have done on 14 September 2021, although for reasons unknown, the referral to the D Hospital was not received by them until 23 November 2021. The mother is still waiting for the appointment with the paediatric department at the D Hospital and it is unclear when or if such a report can be obtained. 

22. Just prior to the relevant interim hearing, the father obtained a report from Dr E dated 9 February 2022. Dr E is a paediatrician and clinical geneticist and was asked a series of questions about G6PD deficiency. Those questions are set out later in these reasons. At this point of these reasons I will simply note that Dr E opined that there is no appreciable risk of the children spending time with the father as a result of Y’s G6PD diagnosis.  That opinion is set out in more detail later in these reasons.

23. As stated, the relevant interim hearing proceeded before me on the afternoon of 10 February 2022. The Court was able to pronounce orders late that day with these written reasons to follow.

    AREAS OF AGREEMENT

24. There were no areas of agreement.

    PROPOSALS

25. The Court will now briefly outline the respective proposals of the parties.

    ICL

26. As stated, the ICL proposes that, pursuant to the interim Orders made 19 March 2021, time commence at the relevant contact centre without delay. The ICL is of the view that any risk of either child catching Covid-19 can be mitigated by the following safeguards she proposes in her Minute:

    ·the father undertaking Covid-19 testing prior to each visit and any fortnightly visit be suspended (for that visit only) should the father receive a positive test;

    ·the father being be up to date with all COVID-19 immunisations;

    ·the father strictly adhering to all NSW Health guidelines;

    ·the father only providing the children with food that has been supplied by the mother; and

    ·the father strictly adhering to any further or additional requirements as required by B Contact Centre.

27. Details of the precise orders sought by the ICL are reproduced in Schedule 2 to these reasons.

    Father

28. The father ultimately aligned with the ICL’s proposal, should the Court find favour with that proposal. That said, I note that the father’s Minute sought a large number of other Orders and a different regime for the children spending time with him.

29. It would appear that the father proposes that the children spend supervised time with him, initially each Thursday from 10.00am to 12.00pm for three months, and thereafter each Thursday from 10.00am to 12.00pm and on each Saturday from 10.00am to 12.00pm. The father also appears to be proposing that this time occur at his residence, or at the B Contact Centre, and be supervised by the maternal Aunt, Ms G or the agency L Family Services (presumably in respect of any time not occurring at the B Contact Centre). 

30. In relation to other orders sought the father seeks orders inter alia for:

    ·the parties to have equal shared parental responsibility for the children;

    ·parties to cause the father’s name to be added to Y’s birth certificate;

    ·the children to spend time with him on other ‘special days’ including Eid;

    ·the children to have video call/FaceTime with him on each Monday (for a maximum of ten (10) minutes) between the hours 10.00am to 10.20am;

    ·certain restraints to be imposed; and

    ·for certain information to be provided to him by the mother.

31. Details of the precise orders sought by the father are reproduced in Schedule 2 to these reasons.

    Mother

32. The mother also sought a number of orders that were not, strictly, within the ambit of the discrete issues hearing.

33. In relation to the children spending time with the father, the mother proposes that for a period of six months from the date of the relevant Orders, the children only communicate with the father each Thursday at 10.00am for an age appropriate length of time. Following the six month period, the children would thereafter spend time with the father at the B Contact Centre at Suburb F (or another contact centre as agreed between the parties) each alternate Thursday from 10.00am to 12noon. The father would be solely responsible for payment of any costs associated with the supervised contact.

34. In addition to imposition of certain restraints, including a family law watch list order (which I note is an order that the Court has already made on 19 February 2021), the mother also proposes that there be orders for her to have sole parental responsibility for the children.

35. Details of the precise orders sought by the mother are reproduced in Schedule 2 to these reasons.

    ISSUES

36. The issue that requires determination in this decision is whether the children spending supervised time with the father at a contact centre poses an unacceptable risk of harm to either or both of the children, and further:

    ·if the answer is yes, then a further question arises as to whether there are any steps that can be taken to mitigate those risks; and

    ·if the answer is no, in what other ways can the children spend time with the father?

37. As noted above, the parties sought to have the Court consider a number of other issues that the Court was unable to deal with in this decision for a variety of reasons, including a lack of hearing time. Moreover, I also note that when the Court made Orders on 13 December 2021 setting the matter down for an expedited interim hearing, Notation G to the relevant orders stated:

    G.The interim hearing will be limited to the discrete issues of:

    i.whether the children commence spending supervised time with the father;

    ii.whether there is evidence to suggest there is a medical risk to [Y] if she spends time with the father at a contact centre; and

    iii.if [Y] does not spend time with the father, whether [X] spending time with the father presents a medical risk to [Y].

    DOCUMENTS

38. The parties and the ICL provided case outline documents and asked the Court to read and consider various documents that had been filed in these proceedings or produced under subpoena.

39. At this point of my reasons I note that the mother objected to the father relying on the report of Dr E dated 9 February 2021. I further note that following submissions I allowed all the available medical evidence to be tendered. The Court exercised its discretion to allow the report into evidence despite some form irregularities with Dr E report. The Court was satisfied that it was in the best interests of the children, and in particular Y, that all relevant medical evidence be considered given it was at the centre of the interim dispute between the parties and noting the difficulties the mother had in complying with paragraph 3 of the Orders made on 8 September 2021. Those orders required the mother to obtain a referral from Y’s GP to “obtain a specialist health assessment report from a suitably qualified independent medical specialist/paediatrician at D Hospital”. While there is evidence that the mother sought a referral from the relevant GP (see Exhibit “ICL1”), no report has yet been prepared and it is unclear whether or if such a report will be received. The Court also had concerns with the wording of the referral by the relevant GP. I discuss Dr E’s report later in these reasons. 

    Father

40. The father relied on the following documents at the interim hearing:

    ·His Affidavit filed on 14 February 2022; and

    ·His Affidavit filed on 3 February 2022.

41. The father also provided two electronic Tender Bundles (that were admitted together and marked Exhibit “AF1”) containing:

    ·Amendments to the new restrictions on prescribing hydroxychloroquine for Covid-19, Australian Government, Department of Health, Therapeutic Goods Administration, 26 August 2020;

    ·Medical records, H Clinic, 22 December 2021; and

    ·Expert Report of Dr E (Paediatrician & Clinical Geneticist) dated 9 February 2022.

1. As this tender bundle comprised 61 pages, only those pages referred to by the father’s solicitor during the course of submissions were read by the Court for the purposes of this decision, including the child’s medical record and Dr E’s report (discussed further below).

   Mother

2. The mother relied on the following documents at the interim hearing:

   ·Her Affidavit filed on 16 March 2021 (read as an indulgence as the mother was directed to file and rely upon one consolidated affidavit for the interim hearing); and

   ·Her Affidavit filed on 20 January 2022.

   ICL

3. In addition to relying on the report of Dr E tendered by the father, the ICL tendered one document being the referral to D Hospital authored by Y’s GP, Dr J, dated 14 September 2021 and date stamped received by the Hospital on 23 November 2021.

   Child Dispute Conference Memorandum

4. As stated, the parties also have had the benefit of a Child Dispute Conference Memorandum, authored by Court Child Expert, Ms K.

5. The interviews for the memorandum took place on the first return date of the father’s application in the duty list before me on 1 February 2021.

6. The memorandum is reproduced in full in Schedule 3 to these reasons and is discussed further in this decision.

   Dr E’s Report dated 9 February 2022

7. As stated, the father caused Dr E to author an Expert Report. Dr E is a paediatrician and clinical geneticist.

8. Dr E was asked to answer the following questions:

   1.What is G6PD deficiency and how does it impact a person’s day to day living.

   2.What treatment (if any) does a person diagnosed with G6PD deficiency require.

   3.What measures (if any are required) could be put in place to ensure the safety and wellbeing of a person diagnosed with G6PD deficiency.

   4.Whether in your opinion physical interactions with another human being would pose a medical risk to someone diagnosed with G6PD deficiency.

   5.Whether in your opinion a person diagnosed with G6PD would be required to live in a bubble meaning that they cannot interact physically with anyone outside that bubble.

   6.Whether in your opinion a person diagnosed with G6PD deficiency would result in that person being more at risk of contracting COVID-19 or more at risk of serious injury or death from COVID-19.

   7.Whether in your opinion a person diagnosed with G6PD deficiency can live a normal life.

   8.Whether chloroquine or hydroxychloroquine are approved in Australia for treatment of COVID19.

   9.Any other information which you believe may be important.”

9. In summary, Dr E opined that[2]:

   ·Most people with G6PD are asymptomatic and it is not a condition which is expected to affect the day-to-day living of an individual, and affect school attendance, and academic ability;

   ·An individual diagnosed with G6PD does not require day-to-day treatment;

   ·A child with G6PD does not pose a risk to others, and that the risk of a child with G6PD developing a severe illness is low;

   ·A child with G6PD can and should participate fully in everyday activities, should not be required to live in a bubble, and can lead a normal life;

   ·There is no evidence to suggest that an individual with G6PD is at a greater risk of contracting Covid-19, than an individual without G6PD; and

   ·Hydroxychloroquine, or chloroquine has not received regulatory to be used as a treatment for or preventing of Covid-19.

   [2] Dr E’s Report pages 8-11.

   RELEVANT LAW

10. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

11. Parenting orders are defined in section 64B of the Act, and deal with outcomes relevant to this decision, including the ‘live with’ and ‘spend time with’ arrangements for children.

12. The power to make a parenting order is found in section 65D(1) of the Act. The power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order” is found in section 65D(2) of the Act.

13. Section 60CA of the Act makes it clear for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of the child in a parenting dispute depends on the particular circumstances in each case, as different circumstances require different outcomes.

14. That all said, to determine the best interests of the child in this case, the Court is required to consider the statutory provisions in light of the available evidence, including, of course, the primary and secondary considerations in section 60CC of the Act. Section 60CC(2)(a) requires the Court to consider the benefit of the children having a meaningful relationship with both of the children's parents. The Full Court considered this provision in the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents. That said, the Court must also consider section 60CC(2)(b) of the Act – the need to protect children from physical or psychological harm, and being subjected to or exposed to abuse, neglect or family violence. Pursuant to section 60CC(2A) of the Act, the Court must give greater weight to this provision as against section 60CC(2)(a). In addition, the Court must also consider the additional factors set out in section 60CC(3) where relevant.

15. When making a parenting order, section 61DA(1) of the Act requires the Court to presume that it is in the best interests of children that his or her parents to have equal shared parental responsibility. However, there are a number of circumstances included in section 61DA of the Act where the Court may decide that the presumption in favour of equal shared parental responsibility should not apply:

    ·first, pursuant to section 61DA(2), the presumption may not apply if there are reasonable grounds to believe that there has been abuse of the children or family violence;

    ·second, pursuant to section 61DA(3), if the Court is making an interim order, which is applicable to this case, the Court may consider, in the circumstances, that it would not be appropriate for the presumption to be applied; and

    ·third, pursuant to section 61DA(4), the presumption may be rebutted if the Court determines that it is contrary to the children’s best interests, having regard to the statutory pathway.

16. In this case, I note again that I specifically listed the interim hearing to consider the discrete issues associated with any health consequences for the children in spending supervised time with the father in a contact centre. In the circumstances, it should have been obvious to the parties that that it would not be appropriate for the presumption to be applied at this time.

17. Lastly, if the Court were to make an order for the parties to have equal shared parental responsibility for the children, then the Court is also required to consider section 65DAA of the Act. This section requires a consideration of whether the children’s best interests would be served by making an order that the child spend equal time (section 65DAA(1)), or alternatively substantial and significant time (section 65DAA(2)), with each parent. Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.

    DISCUSSION

18. The parties and the ICL each provided the Court with written and oral submissions which the Court has considered. Extracts from those submissions follow.

    ICL’s submissions

19. As stated, the ICL supports the retention and commencement of the supervised time orders made on 19 March 2021 with some added safeguards including the father undertaking Covid-19 testing prior to each contact visit. 

20. The ICL argued that the alleged risk asserted by the mother was not an unacceptable one. The ICL indicated that she is “extremely concerned about the lack of priority the mother has given to substantiating her allegation that time at a contact centre poses an unacceptable risk of harm to her children, which has been in contravention of Court orders and hindering the father’s ability to establish his connection to his children”.[3]

    [3] ICL’s case outline document, paragraph 2.

21. The ICL submits the following[4]:

    [4] ICL’s case outline document, paragraphs 18-25.

    “18     The mother has placed the Court in an invidious position.  The Court made orders (which were largely by consent) on 19 March 2021.  The mother unilaterally decided that despite that order, she would not provide the children to the Contact Centre for the purpose of them spending time with their father.

    19       The reason the mother gives is that she believes that [Y] (given her medical conditions) will contract COVID-19.  If she does, the mother asserts that she cannot be treated with chloroquine.  Importantly, the medical evidence upon which she relies is dated 4 January 2021 (M, Annexure “B”) and she knew of that risk at the time she agreed to the orders.

    20       The father presses for supervised time to occur with his children immediately.  The ICL agrees that, with the appropriate safety measures in place, time should commence.

    21       To support that contention, the ICL relies on the following factors:

    (a)       the mother has produced no evidence to substantiate her allegations, despite being on notice since September 2021 (and perhaps earlier) that this was a crucial issue about which she would bear the burden of proof;

    (b)       the NSW Health department has issued comprehensive guidelines, to which the [B Contact Centre] subscribes and follows closely.  The Court may take judicial notice of those guidelines being developed by industry experts charged with the task of protecting the citizens of New South Wales;

    (c)       the referral letter from the doctor describes [Y] as being “asymptomatic” of her G6PD condition: Exb ICL-1;

    (d)       no medical records have been produced suggesting that [Y] is experiencing any other comorbidities that would increase her chance of contracting COVID-19;

    (e)       there is no evidence that [Y] would be unable to be treated with another drug (other than chloroquine) in the unlikely event she contracted COVID-19; and

    (f)       if the supervised time with the father was to occur through a private contact centre (such as the ICL’s suggested L Family Services), such time may occur outside or at a place which may reduce any risk of contracting COVID-19.

    22       These submissions should not be construed as the ICL minimising the seriousness of [Y]’s condition.  However, with appropriate safeguards in place (see proposed orders 5 to 7), that risk – while it will still exist – is not, in the ICL’s submission, an unacceptable risk.

    23       It is also apparent that the children may be at risk of psychological harm in the mother’s care if she continues to withhold the children from the father.  This risk is not unsubstantial.  The children have a right to a relationship with their father, provided it is safe for them to enjoy that relationship.  If the mother’s actions continue to be unsupported by firm medical evidence, the mother runs the risk she will be viewed as obstructive of the father’s relationship with the children.   Such a risk is appropriately balanced by the Court facilitating time with the father, supervised at a contact centre or through a private contact centre.

    24       The father has produced compelling medical evidence that there is no appreciable risk of the children spending time with the father as a result of [Y]’s G6PD diagnosis.  Notably, [Dr E] (Paediatrician & Clinical Geneticist) opines:

    (a)       “G6PD is not a condition that would be expected to affect day-to-day living”: p 5;

    (b)       “It is uncommon once the diagnosis of G6PD is established and assuming cognisance and due caution by parents that a child would have a life-threatening episode”: p 7;

    (c)       “A person diagnosed with G6PD deficiency does not require any treatment day-to-day” and they are often “asymptomatic”: p 8;

    (d)       “The risks arising from physical interactions with others for the child with G6PD are those of: 1/ care and supervision with respect to known environment exposures, most typically foods that the young child should not be given and, 2/ the risk of acquisition of viral illnesses from others. This risk is the same as the risk for any child.” [emphasis added]: p 9;

    (e)       “There is no evidence that indicates that a person with G6PD is at greater risk of acquiring SARS-CoV-2 infection than a person without the condition.”: p 11; and

    (f)       “Hydroxychloroquine (or chloroquine) has not received regulatory approval for the treatment or prevention of Covid19.” and is contraindicated for persons with G6PD: p 11.

    25       On the basis of the evidence produced to the Court.”

22. The ICL also stressed that the medical evidence confirmed that Y was asymptomatic for G6PD deficiency and that, in any event, Dr E confirms his opinion that there is no evidence that indicates that a person with G6PD deficiency is at greater risk of acquiring Covid-19 (the SARS-CoV-2 infection) than a person without the condition.

    Father’s submissions

23. Mr Kassira for the father adopted the ICL’s submissions.

24. In addition to referring to the report and expert opinion of Dr E, the father referred the Court to the child’s relevant medical records.

25. In his written submissions, the father states[5]:

    “1.In relation to [the issue of parental responsibility], the mother has not allowed the father to be involved in [X]'s life since separation and in [Y]'s life since [Y]'s birth.

    2.In relation to [the issue of time to be spent], the mother claims that [Y] cannot spend time with the father at a contact centre due to an alleged medical risk. The mother does not offer or consider solutions such as supervised time occuring at the father's residence or elsewhere.

    3.In relation to [location of time to be spent], I refer to and repeat 2 above.

    4.In relation to [issue of unsupervised time], the father will be seeking unsupervised time in the future but will without admission that it is required agree to supervised time if it will benefit the children and ensure that they are both comfortable. 

    5.In relation to [the issue of ‘special occasions’ time], I refer to and repeat 2 above.

    6.In relation to [the issue of meaningful relationship], I refer to and repeat 1 and 2 above.”

    [5] Father’s case outline document, Part D. 

    Mother’s submissions

26. In her written submissions, the mother states[6]:

    “1.We are still awaiting the medical letter that will inform the Court of whether [Y]'s condition, increases her risks of poor outcomes, should she catch COVID.  As this is a deadly disease, even for people in good health, the risk to the child of seeing her F, is unacceptable.

    2.The ramifications of [X] seeing her F could be that she brings COVID back to [Y], so that again it is possible that [Y] could be at risk from the disease.  Further, [X] is only 4 and not yet eligible for vaccination, so there could be physical ramifications for her too.

    3.The F has not been in physical contact with the girls since January 2019. There is patent hostility and suspicion between the parties.  The M is truly fearful and wants to protect the children from the sexist and violent views she feels he holds about female children.  The M is accepting of supervised contact for the F with the girls, once she knows there is not an increased physical risk to [Y], and when the Contact Centre is accepting visits.  However, under no circumstances would the M agree to the F having visits at his home, at this stage, when his true attitudes and beliefs have not been observed and reported by Contact Centre staff.  If orders were made precipitously, the entire schedule of peaceful re-introduction of the girls to their F, could be put in jeopardy.  The M's fears could well be communicated to the children, even unconsciously, which may well induce fear of the F in them. This could well be disastrous for the future relationships between the F and the girls.”

    [6] Mother’s case outline document, Part D. 

27. Ms Friedlander for the mother, urged the Court to treat the views expressed by Dr E with significant caution given that the expert had not examined Y. Ms Friedlander also questioned whether Dr E had accurately considered the relevant medical studies, in particular a 2021 study that Dr E footnotes at paragraph 22 as ‘Kumar N, AbdulRahman A, AlAwadhi AI, AlQahtani M. Is glucose-6-phosphatase dehydrogenase deficiency associated with severe outcomes in hospitalized COVID-19 patients? Sci Rep. 2021 Sep 28;11(1):19213.” (“the article”). I note that this article was not tendered in evidence. I also note that at page 11 of his report, Dr E states:

    “There is no evidence that indicates that a person with G6PD is at greater risk of acquiring SARS-CoV-2 infection than a person without the condition.

    The preprint of Williams et al. did not identify haematological comorbidity as a risk factor for admission in the hospitalised or PICU groups. A UK study analysing comorbidity and deaths in children and young people (CYP) from Covid in England between Mar 2020- Feb 21 showed no difference as compared to deaths in CYP without Covid when considering haematological disorders as the index comorbidity (8% vs 9.4% of deaths, respectively).20 A review of the PubMed database using the advanced search terms ‘COVID-19’ and ‘G6PD’ does not identify any studies that demonstrate that G6PD affects the outcome for children who acquire COVID-19. Individual case reports, non-systemic literature reviews and laboratory scientific observations are of limited utility in considering the question of how a common disorder (G6PD) influences the outcome of a common infection (COVID-19).21 A review of the literature for adults, identified a relatively large study of 175 individuals with G6PD (47% of whom were women) where the outcomes were compared to 1617 non-G6PD adult patients admitted over the same period22. They reported no difference in outcomes with respect to mortality or morbidity, indeed the G6PD patients did better as a group.”

28. Ms Friedlander, during the course of the hearing, with the leave of the Court read the following extract from the article: 

    “In addition, ex vivo studies show increased vulnerability of the deficient cells to 35 COVID infection compared to cells with healthy levels of G6PD… The most recent observational research involving 182 COVID patients in 40 Sardinia reported that hospitalised patients had a higher proportion of these deficient patients compared to those with asymptomatic or mild disease ...”[7]

    The Court took the liberty to peruse the article referred to by Ms Friedlander, and is of the opinion that the extract referred to by Ms Friedlander during the hearing does not accurately reflect the conclusion made by the authors of the article. Although the article refers to ex vivo studies and Covid-19 patients in Sardinia, in concluding, the authors stated that:[8]

    “In conclusion, the present study did not find any association between presence of G6PDd and occurrence of serious outcomes in COVID-19 patients. We recommend further large-scale studies that include both hospitalized and non-hospitalized COVID-19 patients, for a more comprehensive insight on the role of G6PDd the pathophysiology of COVID-19 outcomes.”

    [7] Transcript, 10 February 2022, page 9.

    [8] Kumar N, AbdulRahman A, AlAwadhi AI, AlQahtani M. Is glucose-6-phosphatase dehydrogenase deficiency associated with severe outcomes in hospitalized COVID-19 patients? Sci Rep. 2021 Sep 28;11(1):19213 page 4.

1. Lastly, I note that Ms Friedlander submitted that, should the Court permit the contact centre visits, then it would be appropriate for the father to undertake a Rapid Antigen Test (“RA Test”) test as close as possible to the time of the visit.

   FINDINGS

2. Having considered the submissions in light of the available evidence, the relevant statutory provisions and case law, the Court finds that, on the available evidence, there is no unacceptable risk in either Y or X spending time with the father in a contact centre. Y is currently asymptomatic for G6PD deficiency and, regardless, the Court accepts Dr E’s opinion that there is no evidence that indicates that a person with G6PD deficiency is at greater risk of acquiring Covid-19 than a person without the condition. Moreover, the additional precautions proposed by the ICL would further mitigate any risk to the children.

3. The Court also finds that the children’s time with the father should remain supervised and occur at the B Contact Centre unless otherwise agreed.

4. The Court will make Orders for:

   ·the father to undergo and complete a RA Test in the presence of an adult, and during the completion of the test, the father is to take photographic evidence of him completing the test and the results of the test. Upon completion, the father is to provide the photographic evidence to the mother by her solicitor with the appropriate time and date stamp;

   ·in the alternative, the father is to undertake a PCR test, not more than four days before the time that the children are to spend with the father, and similarly the results of the PCR test are to be provided to the mother through her solicitor with an appropriate time and date stamp;

   ·should the RA Test or PCR produce a positive result, the time the children are to spend with the father are to be suspended for that visit only;

   ·the father is required to have two doses of a COVID-19 vaccination before spending time with the children, and is to obtain a third booster vaccination within 28 days of the Orders made on 10 February 2022, or within 28 days of becoming eligible in accordance with NSW Health guidelines; and

   ·while the children are spending time with the father at B Contact Centre, the father is require to strictly adhere to NSW Health guidelines, only provide food to the children as provided by the mother, and follow any additional requirements as required by the contact centre.

5. The Court also finds, pursuant to section 61DA(3) of the Act, that it is not that it would not be appropriate for the presumption in favour of equal shared responsibility to be applied at this time and nor is the Court of the view that an order giving the mother sole parental responsibility for the children in their best interests at this time. The parties have parental responsibility by operation of law (see section 61C of the Act) and, until the Court otherwise orders, they should exercise that responsibility carefully and collaboratively. That said, the Court at this time notes with some concern that the father now alleges in his case outline document that he is not named on Y’s birth certificate (although the Court further notes that there is no reference to this issue in his affidavits or in the transcript).

6. As noted previously, the Court had insufficient time to consider all the other interim issues raised by the parties. The Court understands that the interviews for the family report will occur shortly and the Court expects the parties to engage in mediation with the ICL following release of the family report and its recommendations. The mediation will afford the opportunity to discuss all the relevant parenting issues that remain in dispute and the Court can thereafter consider whether the matter should be listed for further hearing, interim or final.

7. The Court finds accordingly.

   CONCLUSION

8. The Court’s findings are now stated.

9. In summary, the Court will make orders for:

   ·the children to live with the mother;

   ·upon a vacancy becoming available, the children to spend time with the father in accordance with the Orders made by this Court on 19 March 2021;

   ·prior to the children spending time with the father, the father is required to:

   ·undergo and complete a RA Test, in the presence of an adult, and during the completion of the test, the father is required to take photographic evidence of him completing the test and the results;

   ·and in the alternative, is required to undertake a PCR Test, not more than four days before the time the children are to spend with the father.

   ·upon completing the RA Test, or in the alternative, the PCR Test, the father is required to provide the photographic evidence of the RA Test, or the results of the PCR Test, to the mother, through her solicitor by way of email;

   ·should the RA Test or PCR yield a positive result, the time the children are to spend with the father are to be suspended for that visit only;

   ·the requirement for the father to have two doses of a COVID-19 vaccination prior to spending time with the children, and is to obtain a third booster vaccination within 28 days of the Orders made on 10 February 2022, or within or within 28 days of becoming eligible in accordance with NSW Health guidelines;

   ·while the children are spending supervised time with the father, the father is require to strictly adhere to NSW Health guidelines, only provide food to the children as provided by the mother, and follow any additional requirements as required by the contact centre.

   ·a restraint by injunction against both parties from showing any documents regarding the proceedings to the children, or discussing the proceedings with the children, or allowing any other person to do so; and

   ·a restraint by injunction against both parties from striking or applying any form of physical chastisement to the children, or allowing any other person to do so.

10. In relation to case management, Chambers had been advised by the Court Children’s Services that the Family Report interviews were expected to take place in April 2022, with an estimated completion date of mid to late May 2022. The matter subsequently was listed for a directions hearing on 18 July 2022, to consider the outcome of mediation and the Family Report.

11. There will be Orders of the Court in accordance with these reasons.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan.

Associate:

Dated:       11 April 2022

SCHEDULE 1

Orders dated 19 March 2021

THE COURT ORDERS THAT:

1.All extant applications be adjourned to this Court on 8 September 2021 at 9.30am for directions (“the next duty list hearing”).

2.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the next duty list hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

THE COURT ORDERS PENDING FURTHER ORDER:

3.That by 4.00pm Monday, 22 March 2021, the mother contact B Contact Centre for purposes of completing the intake procedures to enable such time that the children spend with the father to be supervised.

4.For the purposes of paragraph 2 herein:

a.In the event that B Contact Centres is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to list on not less than seven (7) days written notice to the other party and to the Court.

b.If following its intake procedure, B Contact Centres is able and willing to provide supervision between the children’s time with the father, the children spend time with the father under supervision at the Centre being two (2) hours per fortnight.

c.All costs and expenses relating to the provision of supervision are to be equally shared between the parties although the Court would request that the contact service favourably consider waiving any supervision costs or intake fees in circumstances where the father is unable to work or receive Centrelink payments due to his visa status and the mother is fully responsible for the costs of the children including out of pocket medical expenses for Y’s medical condition.

5.That the children have telephone/videocall contact with the father each week Thursday from 10.00am to 10.20am for a maximum period of 10 minutes.

6.Without admissions and within 72 hours upon a request being made by the Independent Children’s Lawyer the father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes.  Collection is to be conducted by a qualified and certified collector.  Chain of Custody procedure is to be applied to the sample.  Testing is to be conducted at an approved laboratory, accredited to conduct hair drug and alcohol testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant national accreditation body for that laboratory.  Either head or body hair may be collected for testing.  To give effect to this order:

a.The father is required to maintain his body or head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

b.Within seventy-two (72) hours of the date, the father is required to make an appointment with AWDTS by telephoning 1300 378 483 for the purpose of providing a hair sample for the hair drug and alcohol testing purposes;

c.Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;

d.The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the father at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug and alcohol testing purposes from the father or his legal representatives;

e.Written notice to undertake hair collection for hair drug and alcohol testing purposes may be sent to the father care of the email address and shall be deemed to have been received by the father at the date and time it is sent via email;

f.The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of the tests to all parties, including the Independent Children’s Lawyer upon receipt of such test results.

g.The hair drug and alcohol test may screen for alcohol EtG and/or drugs of abuse including amphetamine type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.

h.AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug and alcohol testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant National Accreditation body, AWDTS selection is to be based on the type of test require, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost and time required for results to be made available.

i.The cost of the hair drug and alcohol test is to be met by the father subject to the father making an application to NSW Legal Aid to fund the test noting that such application is supported by the Court and with the father to have liberty to apply for the matter to be relisted on not less than seven (7) days in the event NSW Legal Aid declines to fund the relevant test.

7.Pursuant to s.62G(2) of the Family Law Act 1975, the parties and X born 2018 and Y born 2019 (“the children”) attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia, Sydney Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court as soon as possible and by no later than end of March 2022 AND FURTHER:

(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the children;

(b)The parties comply with all reasonable directions and requests of the Family Consultant;

(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court;

(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations 1984, then:

(i)within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force; and

(ii)the Independent Children’s Lawyer have leave to photocopy all relevant subpoena material for the sole purpose of providing same to the Family Consultant on the condition that the material is destroyed thereafter.

(e)The Applicant’s legal representative and Respondent’s legal representative (or if unrepresented, the parties themselves) confirm with the Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

AND THE COURT NOTES THAT:

(A)These orders were delivered ex tempore following a contested interim hearing on discrete issues heard by the Court today.

(B)Paragraphs 2-6 herein reflect in part a minute of agreed terms not including the areas of dispute which have been determined by the Court today noted in (paragraphs 3(c) and 4(i) herein). 

(C)The parties attended a Child Dispute Conference with Ms K on 1 February 2021.

(D)The purpose of the directions hearing is to:

(i)ascertain compliance of these Orders;

(ii)receive an update on the progress of the parenting arrangements; and

(iii)in the event that the parties remain in dispute, ascertain the ambit of the dispute and make further directions.

(E)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

SCHEDULE 2

Orders sought by the ICL

THE COURT ORDERS ON AN INTERIM BASIS UNTIL FURTHER ORDER:

(1)That the children, X born 2018 and Y born 2019 (Children), live with the mother.

(2)Once a vacancy becomes available at the B Contact Centre, the children spend time with the father in accordance with the orders made 19 March 2021.

(3)Until a vacancy becomes available with B Contact Centre, the children spend reportable supervised time with the father each alternate weekend for a three (3) hour period.

(4)For the purposes of paragraph 3 herein, the children’s time with the father is to be supervised by L Family Services at a place agreed between the parties or, in absence of agreement, at a place nominated by L Family Services, and the Father and Mother do all things necessary to arrange such reportable supervised time.

(5)That within 48 hours of the time the father is due to spend time with the children, he will submit to a COVID-19 PCR test or Rapid Antigen Test, with the results to be provided forthwith to the mother through her solicitor with an appropriate time and date stamp.

(6)If the test in order 5 above produces a positive result, the time the father is to spend with the Children shall be suspended for that visit only. 

(7)At all times when the father is spending time with the children, the father shall:

(a)be up to date with all COVID-19 immunisations;

(b)strictly adhere to all NSW Health guidelines;

(c)only provide food to the children which has been supplied by the mother; and

(d)strictly adhere to any further or additional requirements as required by B Contact Centre or the Private Contact Centre.

Orders sought by the father

Prior inconsistent orders

(1)To the extent that any prior order of the court in this matter is inconsistent with any of the orders below, then to the extent of the inconsistency these orders shall prevail.

Parental responsibility

(2)That the parties shall have equal shared parental responsibility for the children namely X born 2018 (X) and Y born 2019 (Y) (together Children).

Spend time with

(3)That the Children shall spend time with the father as agreed in writing between the parents and failing agreement as follows:

3.1in the first three (3) months following the making of these orders on each Thursday from 10am to 12pm; and

3.2in the period three (3) months after the making of these orders on each Thursday from 10am to 12pm and on each Saturday from 10am to 12pm; and

3.3via video call/facetime on each Monday (for a maximum of ten (10) minutes) between the hours 10am to 10.20am with the father to instigate the call and the mother ensuring that her phone or mobile device is available to receive the father’s call and that the Children are facilitated to see and speak with the father at that time.

Location of the spend time with orders

(4)The location of the father’s time provided for in orders 3.1 and 3.2 shall occur as agreed in writing between the parents and failing agreement as follows:

4.1      The father’s residence; or

4.2      B Contact Centre.

(5)The father shall notify the mother in writing by 6pm on the Monday of each week as to the location of the spend time with orders for the purpose of order 4.

Supervision

(6)The father’s time provided for in orders 3.1 and 3.2 shall be supervised as agreed in writing between the parents and failing agreement as follows:

6.1if the Children spend time with the father at the father’s residence or any agreed location that is not B Contact Centre, then by a supervisor from L Family Services (or a similarly approved supervised contact service provider) or the maternal aunty namely Ms G; or

6.2if the Children spend time with the father at B Contact Centre then by B Contact Centre.

Undertaking

(7)The father’s time supervised by the maternal aunty namely Ms G is conditional upon Ms G providing to the court a signed undertaking with the following terms:

That in relation to times when I am supervising time spent between the children namely X born 2018 (X), Y born 2019 (Y) (‘the child’) and the applicant father (‘the father’):

(a)I will supervise the father at all times that he is in the presence of the children; and

(b)I will not permit the father to be in the children’s presence if I observe that he is engaging in any violent, threatening, intimidating or inappropriate behaviour (although I do not believe that the father engages in such behaviour); and

(c)In the event that the father does not comply with my directions in relations to paragraphs a to b above I shall contact the respondent mother and immediately terminate the visit with the father; and

(d)I shall take all reasonable steps to report to the Independent Children’s Lawyer appointed in this matter any incidents which cause me concern about my supervision of the father’s time with the children.

Changeovers

(8)Changeovers shall occur as agreed in writing between the parents and failing agreement as follows:

8.1if the Children spend time with the father at the father’s residence then at with the supervisor to meet with the mother for the purpose of effecting the changeover; or

8.2if the Children spend time with the father at B Contact Centre then at B Contact Centre.

Special Occasions

(9)The Children shall also spend time with the father on special occasions as follows:

9.1      on either of the Children's birthday from 10am to 1pm;
9.2      on Islamic holiday known as Eid Al Fitr from 10am to 1pm;
9.3      on Islamic holiday known as Eid Al Adha from 10am to 1pm;
9.4      on the Eid celebration for the birth of Islamic Prophet Muhammad from 10am to 1pm;
9.5      on Father’s Day from 10am to 1pm; and
9.6      on the Father's birthday from 10am to 1pm.

(10)The location of the spend time with orders in order 9 shall occur as agreed in writing between the parents and failing agreement at the father’s residence supervised by a supervisor from L Family Services (or a similarly approved supervised contact service provider) or the maternal aunty namely Ms G.

Specific periods when time is suspended

(11)For the avoidance of doubt, the time that the Children are to spend with the father on a special occasion as stated in order 9 shall take precedence over any other order and should this time conflict with any other order then order 9 shall prevail over any other order to give full effect to order 9.

Intake process

(12)The parties must complete any intake assessment application or similar form required by a supervised contact facility or supervised contact service provider within (7) days of the date of these orders.

(13)Supervised contact shall commence immediately pursuant to the availability of a supervised contact centre or a supervised contact service provider or Ms G and no later than seven (7) days following the making of these orders.

Medical information

(14)That within seven (7) days of the date of these orders, the mother shall provide the father with a list of the name, address and telephone number of each medical practitioner, psychologist, social worker, counsellor or like professional consulted by any of the Children and shall authorise each professional to discuss both Children’s presentation, treatment, prognosis and otherwise with the father and shall do all things necessary to ensure that the father be permitted access both the Children's medical records.

(15)That within seven (7) days of the date of these orders, the mother shall provide the father with a full list of all food, medication or otherwise that Y is allergic to with respect to Y’s G6PD deficiency.

Communication

(16)That the parties are to provide each other with a contact mobile number and/or contact email address to be contacted on for the purpose of complying with these orders.

(17)That in the event either party changes their contact mobile number or contact email address then that party must notify the other party within forty-eight (48) hours.

(18)Unless otherwise agreed in writing between the parents, the parents shall only communicate about matters concerning the Children and such communications shall only be in writing by way of email or text message save for in the event of an emergency concerning either of the Children in which event the parties may communicate by audio.

Birth certificate for Y

(19)That within fourteen (14) days of the date of these orders, the parties shall do all that is necessary to place the father's name as the father on the birth certificate of the child Y born 2019.

Emergencies and health issues

(20)That each party is to inform the other party as soon as practicable, of any emergency, medical or otherwise, hospitalisation, illness or injury suffered by any of the Children whilst the Children are in that party’s care.

(21)That each party shall keep the other informed of any of the Children's health issues including any medical or dental treatments, procedures or operations to be undertaken prior to those treatments, procedures or operations occurring, except in the case of an emergency, with the party in whose care the Children are in to inform the other party within twenty-four (24) hours.

Restraints

(22)That the parties be restrained from and will use their best endeavours to prevent any other person from, denigrating the other party, the other party’s partner or family members, in any of the Children's presence and/or hearing.

(23)Without admission, the mother or mother’s agent shall be restrained from lighting any incense smoke or other smoke in the presence or smelling of the Children.

(24)Without admission, the mother or mother’s agent shall be restrained from striking or hitting or physically disciplining the Children.

Further or other orders

(25)Further or other orders as the nature of the case may require.

Orders sought by the mother

(26)The mother to have sole parental responsibility for the children X born 2018 and Y born 2019.

(27)The children to live with the mother.

(28)For six months from the date of the orders, the children to communicate with the father each Thursday at 10.00 am for an age appropriate length of time with the father to initiate the call and with the mother to facilitate the children receiving the call via a communication method as agreed and failing agreement via video call.

(29)After six months from the date of the orders, the children to spend time with the father at a supervised contact centre with a supervised contact provider present, every alternate Thursday from 10.00 am to 12 noon.         

(30)Both parties to attend B Contact Centre at Suburb F or another contact centre as agreed between the parties and complete the intake procedures to enable such time that the children spend with the father to be supervised.

(31)The father to be solely responsible for payment of any costs associated with the supervised contact.

(32)The parties to provide each other at all times with a current mobile telephone number for communication to occur between the parties for the sole purpose of complying with orders relating to the children.

(33)Each party be restrained from physically disciplining the children.

(34)Each party be restrained from publishing photographs or other depictions of the children on any social media.

(35)Each party be restrained from denigrating the other party, or any member of the other party's family, to or in the presence or hearing of the children, or allowing any other person to do so.

(36)Each party, their servants and agents, be restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and that the Australian Federal Police be requested to give effect to the order by placing the names of the children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the watch list until the court orders its removal inducing fear in them also. This could well be disastrous for the future of the F's relationship with the children.

SCHEDULE 3

Duty Child Dispute Conference Memorandum, Ms K, 1 February 2021

ISSUES IN DISPUTE

1.   Parental Responsibility: Mr Diop proposed that each parent hold equal shared parental responsibility for X (aged 2 years …) and Y (aged 1 year …). Ms Gueye proposed that she hold sole parental responsibility for the children.

2.   The time the children spend with Mr Diop: Mr Diop proposed that X and Y commence spending supervised time with him three days per week from 10:00am to 1:00pm. Ms Gueye proposed that the children do not commence spending time with Mr Diop until his visa tribunal hearing is finalised as she alleged that he is only seeking to spend time with the children to support his permanent residency application and to avoid deportation. Ms Gueye proposed that if Mr Diop demonstrated interest in re-establishing a relationship with the children after his visa is settled, he has supported them financially and he has engaged in a consistent period of video call, she may consider supervised time as appropriate then.

3.   Costs of Supervised time: Mr Diop proposed that both parents share the costs of supervised time. Ms Gueye proposed that, if supervised time is considered that Mr Diop cover the costs.

4.   Long –term parenting arrangement: Mr Diop proposed that after the children have three months of supervised time with him that it then become unsupervised and gradually increase to include special occasions, and then on a final basis that the  with the children live with him. Ms Gueye was adamant the children should remain in her care, as she has been their primary carer and alleging that the children would not be safe in Mr Diop’s care.

5.   Children’s names: Mr Diop proposed that Y’s name be changed … and his name be recorded on her birth certificate. Ms Gueye advised that she did not want to record Mr Diop’s name on Y’s birth certificate, stating that she wished to add her surname to each of the children’s legal names.

6.   Passport: Mr Diop proposed that Y and X’s passports be held by the Court. Ms Gueye reported that neither X or Y have passports.

RISK FACTORS
Family violence

7.   Both parents made mutual allegations of serious family violence perpetrated by the other, including verbal, physical, sexual and financial abuse and coercive controlling behaviour. Both denied these allegations.

8.   Ms Gueye alleged that Mr Diop has been the defendant and she the protected person on two Apprehended Domestic Violence Orders (ADVOs), the first in late 2016, a short period after he arrived in Australia and the second in January 2019. There is a current Final ADVO in place until August 2021.  Ms Gueye maintained that Mr Diop made her withdraw her allegations for the first ADVO, threatening to have people in Country C kill her mother if she refused to.

9.   Both agreed that the police were involved with them in late 2016 and again in January 2019. Mr Diop insisted that Ms Gueye made false allegations to the police regarding his behaviour, as she knew he was fearful of police. Ms Gueye denied this stating that they were involved due to serious concern for her and the children’s safety. Ms Gueye insisted that she has move each year due to concerns for her and the children’s safety, that she has security cameras installed and that she does not want Mr Diop to know her address. She alleged that Mr Diop has threatened to kill her, her mother and the children, during the relationship.

10.  Ms Gueye reported that a social worker in D Hospital was concerned for her safety when she was pregnant with Y, as she allegedly had a history of presenting to the hospital with stomach pains and had two miscarriages, that she believes were a result of Mr Diop’s physical assaults on her.

11.  Ms Gueye alleged that Mr Diop has people from Country C call her and tell her not to request child support and not change the children’s names or they will kill the maternal great grandmother, who still resides in Country C.

Child safety and wellbeing

12.  Both parents reported that there has been no child protection involvement in respect of X and Y.

13.  Mr Diop alleged that the maternal grandmother physically disciplined X and that Ms Gueye frequently verbally abuse X. Ms Gueye adamantly denied this.

14.  Ms Gueye insisted that she has always been the primary carer of the children, that she is a good mother and that she nurses children with disability. Mr Diop maintained that both parents were equally involved with X before separation. 

15.  Ms Gueye denied that either she or her mother smoked incense, or undertook any form of smoking, in the presence of the children.

16.  Ms Gueye reported that Y has a rare blood disorder called glucose-6-phosphate dehydrogenase deficiency (G6PD) that allegedly means that Y is vulnerable to infections, particularly COVID-19, as she is severely allergic to a medicine that is used to treat it. Ms Gueye maintained that as a result she has had to cease work and X cease day-care since the COVID-19 pandemic. She maintained it would not be safe for Y to be exposed to people who may be carrying sickness, such as at a contact centre. Ms Gueye said that Y is frequently in and out of the hospital for blood transfusions and that stress or disruption to her routine can impact her wellbeing. Ms Gueye reported that Y has been referred to a haematologist in D Hospital.

17.  Ms Gueye alleged that she had concerns that Mr Diop was sexually assaulting X and as a result, she never left X alone in his care. She maintained that she did not return to work after her maternity leave until her mother was able to come to Australia to care for X, as she would not leave X in Mr Diop’s care. She said that female children are not respected in Mr Diop’s culture or relation and that they circumcise females. Ms Gueye alleged that Mr Diop has often locked himself into a room with X and she has also walked in with him having X stripped naked and woken from her nap. She reported Mr Diop maintained the was checking X’s clitoris to see if it was ready for circumcision, but she is doubtful this is the reason. This was not canvassed with Mr Diop.

18.  Mr Diop reported that he has no information about how X and Y are doing. He said that he learned Y was born from the police documents for the ADVO and only learned from the filed material that she has a rare condition. He expressed that this both upsets and worries him.

19.  Ms Gueye alleged Mr Diop is seeking supervised time with the children so that he has paperwork for immigration top demonstrate his involvement with the children. She expressed concern that if Mr Diop gets his visa he will disappear again or be deported. She emphasised the impact of this disruption on the children.

Drugs and alcohol

20.  Ms Gueye alleged that Mr Diop frequently returned home “high” after spending time with friends. She said that she is unsure what he used but that he would present as angry and easily irritated and would physically assault her or lock her and X in a room. Mr Diop denied that alcohol or drug use was an issue for him.

21.  There was no concerns raised in respect of Ms Gueye.

Mental health

22.  Both parents reported having no mental health diagnosis. Both parents expressed concern for the other’s allegedly violent and controlling behaviour.

23.  Mr Diop said that he commenced attending counselling with M Services in January 2021 as his aunt who raised him died and he has found it to be a difficult time. He reports having good friends and that he speaks to his parents, who reside in Country C, daily.

24.  Ms Gueye reported that she attended Domestic Violence counselling in January 2019. She said that she has a good support network in her mother and friends.

Abduction:

25.  Both parents expressed concern that the other may abduct the children overseas.

26.  Ms Gueye maintained that she was born in Australia, is an Australian citizen, her parents reside in Australia, her job is in Australia and that she has no intention of relocating to Country C or Country N as alleged by Mr Diop.

27.  Mr Diop said that he has no intention of relocating to Country C and wishes to remain in Australia. Ms Gueye alleged that if Mr Diop is deported he may attempt to abduct the children to Country C.

ADULT RELATIONSHIPS

28.  Mr Diop alleged that his and Ms Gueye’s relationship was positive until the maternal grandmother came to reside with them. Ms Gueye denied this, alleging that the physical violence and control commenced soon after Mr Diop came to Australia in 2016.

29.  Both parents agreed that they have had no communication since separation.

ISSUES FOR THE CHILDREN

30.  Ms Gueye emphasised that she hoped the Court would permit her time to submit her response and affidavit outlining her concerns and evidence before making any decisions regarding the time that the children spend with Mr Diop.

31.  Mr Diop expressed concern that Ms Gueye and her mother denigrate him to the children. Ms Gueye denied this and maintained that neither child remembers Mr Diop. Both parents agreed that Y has never spent time with Mr Diop and that X has not spent time with him since January 2019.

32.  Mr Diop expressed concern that the children have no relationship with him, as Ms Gueye will not permit him to be part of their lives. Ms Gueye reported that Mr Diop has never demonstrated any interest in the children, that she has been solely responsible for their care and any decisions required to be made. She emphasised that he has paid no child support since the relationship ended and that he told her that he wanted nothing to do with her and the children. She alleged he has made no effort to see or support the children and that he is only pursuing a relationship now, as he requires evidence of his involvement in the children’s lives to have his permanent residency visa considered.

33.  Mr Diop said that he resides with a friend and her children agreed between 17 and three years of age but that he intends to move sometime soon. Ms Gueye alleged that Mr Diop is residing with her paternal aunt, whom she does not have a positive relationship with, and that Mr Diop intendeds to remove the children from her and have her aunt care for them, so that her aunt can claim Centrelink payments for the children.

34.  Mr Diop alleged that he does not agree with the name Y, as he was not consulted and she was named after the maternal grandmother whom he does not have a positive relationship with. Ms Gueye reported that Y is familiar with and responds to her name and that it would be harmful to change it.

35.  Mr Diop reported that his tribunal for his visa was due to be in May 2021 but that it has been cancelled and may not proceed until late 2021 or early 2022.

36.  Mr Diop reported that his current income is from the local community, support from his parents and his savings. He advised that he would be capable of paying a portion of the supervised time costs.

37.  Ms Gueye alleged that Mr Diop is a strict Muslim and did not want X to play with non-Muslim children or attend childcare. She alleged that Mr Diop has made statements such as all non-Muslim and “gay people” should be killed. She expressed concern regarding the children being isolated and exposed to inappropriate sentiments in Mr Diop’s care.

AGREEMENTS REACHED

38.  Both parents are in agreement with the children commencing weekly video calls for a maximum of 10 minutes. They need to reach agreement on a suitable date and time, with Ms Gueye proposing Thursdays at 10am and Mr Diop proposing Tuesday at 6pm. 

39.  Both parents are in agreement with Y and X’s name being placed on the Family Law Watchlist.

FUTURE DIRECTIONS

40.  This is a concerning matter when there has been serious mutual allegations of family violence. If either parent’s account is accurate, this is very concerning and suggests that X and Y, in utero, were exposed to family violence. The exposure of children to family violence/parental conflict, particularly from a young age, can have a significant impact on all aspects of a child’s development, including emotional, social, behavioural and educational. It is imperative that the children are shielded from any further family violence/parental conflict and that their safety and wellbeing is prioritised.

41.  Ms Gueye has raised serious allegations regarding the possible sexual assault of X by Mr Diop. This was not canvassed with Mr Diop as he was interviewed first. However, if this was found to be true this would suggest that Y and X may be at risk of physical and psychological harm if they were to have unsupervised time with Mr Diop.

42.  If Mr Diop’s allegations that Ms Gueye and the maternal grandmother are verbally and physically abusive and Ms Gueye is purposely preventing Mr Diop to be involved in the children’s lives, this is concerning and may suggest that X and Y are at risk of physical and psychological harm in Ms Gueye’s care.

43.  If Ms Gueye’s allegations that Mr Diop is physically, verbally, sexually abusive and controlling and that his cultural and religious beliefs could lead to the children being isolated and mistreated, then this is concerning and may suggest that the children would be at risk of physical and psychological harm if they were to spend unsupervised time in Mr Diop’s care.

44.  Given the concerns raised and the age of the children, it is important that their safety and wellbeing is prioritised. While it may be appropriate for the children to commence video calls with Mr Diop as a way to establish some connection with their father, if this as to expose the children to any form of parental conflict, this would be harmful and the calls should be ceased.

45.  In terms of the children’s time with their father, it would appear that supervised time would be the best option at this stage, to assist in establishing the children’s relationship with Mr Diop, in a supportive environment where Mr Diop can be supported in relation to his parenting of the children as they adjust to him, while also providing a safe environment for the children, while further evidence or interventions are being undertaken/gathered. However, if it was thought that Mr Diop’s involvement in the children’s lives was going to be short-lived or sporadic this re-introduction could impact their emotional wellbeing and development.

46.  It may be appropriate that the parents commence the intake process of a reputable service, such as O Service who undertake centre based supervised time and provide good support/feedback to the parents. It would be suggested that any supervision agency is provided a copy of this memorandum at intake. The intake and waiting list is likely going to be a number of months and may allow time to see how the calls progress and time to gather further information or clarification on a number of issues such as Y’s health and Mr Diop’s visa. It may be useful for Ms Gueye to obtain a report from Y’s treating specialist regarding whether supervised time is appropriate or outlining what precautions would be required to be taken if it was to proceed.

47.  If the Court is concerned that either parent engaged in family violence it may be appropriate for them to engage with the P Service and engage in relevant supports such as individual counselling or a men’s behaviour change program. Mr Diop could contact … and Ms Gueye contact … to explore support options.

48.  If the Court are concerned regarding Mr Diop’s alleged drug use, it may be helpful for him to undergo hair follicle testing and/or urinalysis to clarify if this is an issue.

49.  It may be appropriate for Mr Diop to provide an update on his visa tribunal/application process to gain further clarity on this.

50.  Given the allegations by both parents, it may be appropriate that an Independent Children’s Lawyer is appointed. It may also be beneficial the ICL subpoena the police and health records of both parents as well as the child protection, health and childcare records of the children to confirm whether some of the issues raised by the parents are valid concerns.

51.  If the matter requires final determination, it may be appropriate for a Family Report to be prepared.