Department of Family and Community Services and Haura and Anor

[2015] FamCA 72

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & HAURA AND ANOR [2015] FamCA 72

FAMILY LAW – CHILDREN – Interlocutory Application – where the Department of Family and Community Services sought a continuation of ex parte injunctions made to restrain the conduct of the subject child’s parents – where the Department alleged that the child was at risk of sexual abuse, namely, the child being subjected to female genital mutilation – where the restriction on the movements of the child’s parents, when weighed against the irreversible, adverse effects of surgery, encourages the Court to take a most conservative approach – current orders confirmed – respondents’ application dismissed

Crimes Act 1900 (NSW), ss 45, 45A
Family Law Act 1975 (Cth), ss 60CC, 64B, 65C, 67ZC, 68B

CDJ & VAJ (1998) 23 Fam LR 755

APPLICANT: Department of Family and Community Services

RESPONDENT: Mr Haura and Ms Annissa

FILE NUMBER: SYC 6975 of 2014

DATE DELIVERED: 28 January 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 28 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Martin

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Stephen Hopper & Associates

Orders

1. That the Application for Interim Orders sought in the Response filed on 12 December 2014 in the Federal Circuit Court of Australia is dismissed.

2. That Orders 5 to 8 inclusive made pending further Order in the Federal Circuit Court of Australia on 6 November 2014 are confirmed.

   THE COURT ORDERS PENDING FURTHER ORDER THAT

   (5)Until further order, the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child B born … 2014 (female) from the Commonwealth of Australia.

   (6)The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit any person from removing or attempting to remove the said Child from the Commonwealth of Australia.

   (7)Until further order, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

   (8)The First and Second Respondents, their servants and/or agents, and any other person, be and are hereby restrained by injunction from excising, infibulating or otherwise mutilating the whole or any part of the labia majora or labua minora or clitoris of the Child B born … 2014, or aiding, abetting, counselling or procuring a person to perform any of those acts on the Child B born ... 2014.

3. That the Amended Initiating Application filed 6 November 2014 in the Federal Circuit Court and Response filed 12 December 2014 are to be listed for Directions in Sydney on Monday 13 April 2015 at 10.00 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Department of Family and Community Services & Haura and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT  NEWCASTLE

FILE NUMBER: SYC 6975 of 2014

Department Of Family And Community Services

Applicant

And

Mr Haura And Ms Annissa

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Secretary, Department of Family and Community Services New South Wales (“the Department”).  The application is effectively for a continuation of ex parte injunctions made to restrain the conduct of the subject child’s parents (“the respondents”) and promote the welfare of one of their children.  The application raises some legal issues. 

2. Arguably, one or all of the orders sought are parenting orders within the definition of s 64B(2)(i) of the Family Law Act 1975 (Cth) (“the Act”), which is any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. One or more of the orders sought are injunctions pursuant to s 68B of the Act, one which is an injunction for the personal protection of a child. There are slightly different implications for the consideration of the matter on that basis.

3. The respondents are a married couple, both aged 33.  They are the parents of the subject child, born in 2014 (“the child”).  She is almost five months old.

4. The Department, under s 65C of the Act, is a person concerned with the care, welfare and development of a child. Specifically, the Department is concerned with the welfare of the child and an alleged risk of abuse, namely, the child being subjected to female genital mutilation as defined in s 45 and s 45A of the Crimes Act 1900 (NSW). Whilst not explicitly stated, the source of power within Part 7 of the Act for the application is either, but probably both,

   
   

   s 67ZC and s 68B(1) of the Act.

The Evidence

1. The affidavits relied on are as follows. 

2. For the Department:

   (a) The affidavit of Ms C, the acting manager of case work, filed 5 November 2014;

   (b) The affidavit of Ms D, a case worker, filed 20 January 2015; and

   (c) The affidavit of Detective Senior Constable E of Police, attached to the Sex Crimes Squad and the officer in charge of the Strike Force H investigation into the subject child and her parents, filed in court on 27 January 2015. 

3. For the respondents:

   (a) The affidavits of the father, filed 12 December 2014 and sworn

   
   

   27 January 2015 (not filed);

   (b) The affidavit of the mother, filed 12 December 2014; and

   (c) The affidavit of Mr F, solicitor, filed 23 January 2015.

Short History of Relevant Events

1. Both respondents were born in Country G.  The father first came to Australia in about 2003.  They married in Country G in 2012 and their first child, a son, was born in July 2013.  The respondents began living together in Australia in December 2013.  Their second child, a daughter, the subject child, was born on 5 September 2014 in Sydney. 

2. On 4 November 2014, New South Wales Police advised the Department of an intention by the respondents to travel to Country G and expressed a concern about the purpose of the trip, namely, being for surgery on the child.[1]

   [1] Ms C’s Affidavit filed 05/11/2014, Annexure E

3. On 5 November 2014, the Department filed an Initiating Application in the Federal Circuit Court for final and interim orders to restrain the parents from removing the child from Australia.  That application was given a return date in February 2015, which was quickly amended to 6 November 2014. 

4. On 6 November 2014, with a warrant, police searched the flat in which the respondents lived and found tickets for travel scheduled for

   
   

   8 November 2014. 

5. On that day, 6 November 2014, the matter came before the Federal Circuit Court.  Leave was given for an initiating application to be filed in court that day and for the matter to proceed in the absence of the respondents. Interim orders were made, being Orders 5, 6, 7 and 8.  In summary, those Orders are that the respondents were restrained from removing or attempting to remove the subject child from Australia, that the child’s name be put on the restricted list for removal from Australia, that the child’s name be put on PACE alert and that the respondents be restrained from procuring surgery which falls within the category of female genital mutilation on the child.

6. Directions were made for service on the respondents, and the proceedings were adjourned, to 19 December 2014. 

7. On 12 December 2014, a Response was filed containing interim orders sought, which have come before me.  They were:

   (a)That the respondents be free to travel internationally with the subject child; and

   (b)A restraint, effectively by consent, of the type that had already been made in order 8 (in relation to procuring surgery).

8. On 19 December 2014, the matter came back before the Federal Circuit Court.  The respondents were present and represented.  The matter was transferred to this Court, with a notation that the issue was complex and urgent given the respondents’ wish to travel overseas with their two children on

   
   

   31 January 2015. 

9. On 23 January 2015, the matter came before me in Sydney for interim hearing.  An affidavit had been recently filed by an officer in Strike Force H, the investigation team put together in response to concerns about the subject child.  Annexed to the affidavit was a transcript of a conversation which took place on 9 September 2014, between the respondents and two other family members.  The conversation, in Country G, had been covertly and lawfully recorded by police.  The transcript was of a translated version from Country G to English.

10. On behalf of the respondents, a request was quite reasonably made for access to the tape to enable them to check the accuracy of the translation and to refresh themselves about the conversation.  Unfortunately, the parties were unable to play the tape with available equipment.  The matter was adjourned to

    
    

    27 January 2015, to enable that to happen. 

11. In the adjourned period, the tape was played, and a further affidavit filed and relied on in relation to the transcript of the conversation.  That affidavit was the second affidavit to be filed by the father. 

12. The matter was heard on 27 January 2015 before me in Newcastle.  My decision was reserved to the following day.  I proposed to dismiss the application of the respondents for interim orders and to confirm the injunctions restraining them from taking the child out of Australia. 

The Law

1. The court can make an order or grant an injunction only if it considers it appropriate for the welfare of the child.  I must therefore consider that the order or injunction would likely benefit the child. 

2. The best interests of the child are of great significance in the exercise of the discretion under section 68B(1) of the Act, although probably not of paramount consideration, given the authority in CDJ & VAJ (1998) 23 Fam LR 755. That authority establishes that if a discretionary power is conferred by a statute which is silent as to the matters which govern its exercise, the discretion is confined only by the subject matter with which the legislation is concerned.

3. Where a general and unconfined discretion is conferred on a court, as is the case with section 68B(1) of the Act, it is also governed by the requirement that it is to be exercised judiciously and consistently with the judicial process. A court is not to be confined by reference to matters which are not required by the terms of the statutory provision by which it is conferred or the context in which it appears. Other interests may be taken into account accordingly.

4. In this case, the interests of the respondents in travelling to their country of birth and involving their children in important family events, such as meeting with extended family, and in this case, a wedding of the father’s cousin. 

5. The paramountcy principle, however – that is, that the best interests of a child are paramount – does apply to section 67ZC of the Act, the provision which is the source of power for orders in relation to the welfare of a child.

6. I will, in determining the matter, consider the best interests of the child, as set out in section 60CC of the Act. The primary considerations in determining the best interests of the child are the benefit to a child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

7. Section 60CC(2)(b) of the Act has some relevance here. That is, the application is made to protect the child from both physical and psychological harm and of being subjected to possible abuse.

8. Of the additional considerations set out in section 60CC(3) of the Act, the relevant factors appear to be the capacity of each of the child’s parents to provide for the needs of the child. Having said that, there is no allegation of any kind that the respondents are negligent or abusive parents in relation to either of their children. Rather, it is the allegation that the respondents are contemplating or intending to have female genital mutilation surgery conducted on the subject child, consistent with the cultural practices in their community in Country G.

9. The only other relevant factor is any other factor or circumstance that the court thinks is relevant.  There is evidence before the court to support the allegation about the respondent’s intention in relation to their trip due to commence on 31 January 2015.  The evidence falls into five categories. 

   First Category of Information

10. At the end of August 2014, there was information provided to police from somebody who is only identified as a ‘source’.[2] That source stated to police that the person had been directly involved in conversations with the father about female genital mutilation.

    [2] Affidavit of Ms D filed 20.01.2015, Annexure A

11. Strike Force H was activated by information from the source.  Not all of the information has been revealed as yet to the Department.  Subsequently, the source came forward and advised police that what had previously been said was not true and accurate.  The source admitting that they had not been party to first-hand conversations, but rather to information provided by a third party. 

12. On behalf of the respondents, it is said that the information first provided proving to be subsequently unreliable should throw doubt on the credit of the source and should cause the court to give little or no weight to what had been said. There is some force in this submission.  However, it is not the only evidence before the court.

13. Subsequently, police interviewed colleagues of the father from his workplace, and that information was also put before the court.  That information was about an intention of the respondents to travel overseas with the child and references to the father making comments to colleagues in the workplace about female genital mutilation being regularly performed in Country G and having been performed on the mother in these proceedings. 

    Second Category of Information

14. On 9 September 2014, at about 11.20 am, there was recorded the covert conversation between the respondents, the maternal grandmother and the mother’s cousin, immediately after the discharge of mother and the child from hospital after the child’s birth.

15. That conversation was annexed to the affidavit of Detective E and was referred to earlier in these reasons.  In that annexure, the Court was taken to page 7 of 8, and an entry under the time 23.58 as follows:

    So we do not talk to people from [Country G] that it is going to be circumcised. Because just with one person reporting, we too will be investigated.  Even if they are from Country G or friends, we need not tell them.

16. In his second affidavit, the father says that he was referring to the case of a friend of the parties who had had his daughter circumcised and was now before the courts.  The father says this at paragraph 13:

    I was pointing out that I thought it was stupid for [the named person] to discuss with people that he had his daughter circumcised because if you just told one person they could report you which is what happened with [him] and he was investigated and prosecuted.  I was not talking about having my daughter circumcised or sneaking her off to [Country G] to have it done away from Australia.

    Clearly, it is a significant difference and may well be the subject of exploration in a final hearing.  There are difficulties with a direct English translation without consideration of figurative or idiomatic language.  There are also considerations of the father having provided a translation and interpretation of the matter in the context of these difficult proceedings.

    Third Category of Information

17. The next category of evidence is statements of the respondents made in an interview on 30 October 2014.  Those statements are contained in Annexure ‘B’ to the affidavit of Ms C filed 5 November 2014.  The respondents were interviewed separately.  There are many statements made by each of the parents which are of some support to the case of the Department and also contain detail which was not touched on in each of their respective affidavits.  For instance, the mother made the following statements that she was not sure if she herself had been circumcised, and she would have to ask her mother.  It is conceded that there is evidence that the mother did ask her own mother and subsequently confirmed to the Department that both she and her sister had had a circumcision procedure.

18. The mother also made this statement.  In answer to a question, what would be the implications if a girl was uncircumcised, the mother answered, “If we don’t do circumcise, the girl is naughty [sic]”.

19. In relation to the question, what is your belief about that, the mother replied, “She’s okay.  I won’t do that.  I think all people do that.  That’s why I think I’ve done.  It’s … for girls.  Not allowed anymore.”

20. The mother also said that she had consulted her ustad – her religious advisor – who said that it was not necessary to have a girl circumcised.  The mother had sought that advice before the birth of the child, and again, the mother made this statement, “I have friend that have girl before me.  We talk about it.  Better not to do it here because not allowed.  Better not to risk.”

    And this statement that she had discussed the matter with her own mother,

    
    

    “She okay not to do it”.

21. The mother also expressed her concern that she might have been misunderstood because of her English and clarified that she had no plans to circumcise the child.  There are obvious difficulties with the mother undertaking this important interview in English, which is not her first language. 

22. In the interview with the father, the father asserted that the reason they had intended to travel to Country G was for assistance for the mother with the care of two very young children.  When asked about day care, he said the parties could not afford it and did not like to impose on friends by asking them.  There is no reference in the affidavit to the respondent’s financial difficulties or explanation of their ability to both travel with the children for a holiday and to attend a wedding. 

23. The father also made the statement, “I really don’t understand because my brother’s daughter didn’t do it.  So it’s not compulsory.” The father also made it clear, “I never thought of it – never thought to do that to her.”

24. Those statements conflict with the reported statements of the father’s colleagues and will no doubt be the subject of exploration in a final hearing. 

    
    

    A safety plan was entered into after that interview on 30 October 2014. 

    Fourth Category of Information

25. The fourth category of information is the statements of work colleagues of the father.  They are contained in pages 8, 9 and 10 of Annexure A to the affidavit of Ms D referred to above.  They are all interviews by the Department or police or both, and were undertaken in December 2014, with four different work colleagues.  I will refer to the named persons by their initials. 

26. D.K. stated that the father had told her that circumcision of girls was a practice in Country G and that the mother had had the procedure done there.   There are other vaguer statements in relation to the father’s confirmation of knowledge of the procedure and his preference for a wife, before he had married, for having had the procedure done. 

    Fifth Category of Evidence

1. The affidavits of the respondents themselves contain declarations of their having no intention to perform the procedure on the child.  There is very little information otherwise in the affidavits.  The mother made no reference to herself and her sister having had the procedure in Country G.  There were no details of the father’s cousin’s wedding or, as previously stated, how the trip could be afforded, given what the father had said about the need to travel back for help, which they could not afford in Australia.  The possibility exists that the respondents do not have the intention to undertake any form of surgery on the child. 

Conclusion

1. All evidence before me in this hearing is untested, as is usually the case in interim proceedings.  A final hearing will undoubtedly take place, given that it is likely that the respondents will again want to travel with the child to Country G during her infancy.  In a final hearing, all the parties and relevant others will, of course, be cross-examined.  By then Strike Force H may have concluded its investigation and be in a position to provide more information to the Department.

2. There are significant competing interests: the freedom of movement of the child, and the interests of the respondents in travelling with both their children, normally a most positive experience, home to Country G to meet and stay with family and participate in a wedding. 

3. However, in balancing the refusal to allow a suspension of the current Orders to enable travel, which leads to such restriction of movement and adult disappointment, against the irreversible, adverse effects of surgery, if it were to take place, and the adverse impact on the child of such a crime being committed by the respondents, with consequences for the children of that happening, encourages me to take a most conservative approach to this application. 

4. That is, that there be a confirmation of the current Orders made by the Federal Circuit Court and dismissal of the application on an interim basis by the respondents.  I have appointed a date for further directions in the Family Court at Sydney, and that date in April is contained in the orders which will be forwarded to the parties immediately I will also order a copy of these Reasons for judgment to be made available to the parties. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 January 2015.

Associate: 

Date:  16 February 2015