Department of Family and Community Services and Haura and Anor

Cleary J of the Federal Circuit Court of Australia considered an application by the respondents for interim orders to allow them to travel with their infant daughter, Child B, to Country G. The Department of Family and Community Services sought to maintain existing orders that restrained the removal of Child B from Australia and prohibited any form of female genital mutilation. The core dispute revolved around the potential risk of Child B undergoing this procedure while in Country G, given cultural practices and the parents' alleged knowledge and potential intentions.

The court was required to determine whether to dismiss the application for interim orders seeking to lift the existing travel restrictions, thereby confirming the interim orders made on 6 November 2014. These existing orders included restraining the removal of Child B from Australia, requesting law enforcement assistance to prevent her removal, placing her name on an airport watch list, and enjoining the respondents from performing or procuring female genital mutilation on her. The court also had to balance the competing interests of the parents' freedom of movement and their desire to travel with their children against the potential for irreversible harm to Child B.

In reaching its decision, Cleary J adopted a conservative approach, acknowledging that all evidence presented at the interim hearing was untested. The judge noted the significant competing interests, including the freedom of movement of the child and the respondents' desire to travel with both their children to Country G to visit family and attend a wedding. However, the court weighed these against the irreversible and adverse effects of female genital mutilation, should it occur, and the potential criminal consequences for the respondents. The judge found that the risk of such a procedure, even if not definitively proven at this stage, warranted the confirmation of the existing protective orders.

Consequently, the court dismissed the application for interim orders sought by the respondents. The existing orders made on 6 November 2014, which restrained the removal of Child B from Australia and prohibited female genital mutilation, were confirmed pending further order. The matter was listed for directions in Sydney on 13 April 2015.