Department of Family and Community Services and Haura & Anor

[2017] FamCA 548

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & HAURA AND ANOR [2017] FamCA 548

FAMILY LAW – CHILDREN – CONSENT ORDERS – RISK OF HARM – Where the parties jointly seek that orders be made by consent for the parents to travel overseas with the child – Where there are concerns that the child might be subject to female genital mutilation – Where Orders were made in 2015 prohibiting the parents from removing the child from Australia and placing the child on the Airport Watch List – Where it is found that a risk to the child still exists – Where the consent orders are not made and the parties’ joint application dismissed – Orders made for the appointment of an Independent Children's Lawyer.

Family Law Rules 2004 (Cth) r 10.15A

APPLICANT: Department of Family and Community Services

RESPONDENTS: Mr Haura and Ms Annissa

FILE NUMBER: SYC 6975 of 2014

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

SOLICITOR FOR THE RESPONDENT: Stephen Hopper & Associates Solicitors

Orders

IT IS ORDERED

1. That the joint application of the parties for orders in accordance with terms of a document signed on 27 July 2017 is dismissed. 

IT IS REQUESTED

1. That pursuant to section 68L(2) an independent children’s lawyer be appointed on behalf of the child B (female) born … 2014 AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

2. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

4. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6975 of 2014

Department of Family and Community Services 

Applicant

And

Mr Haura and Ms Annissa

Respondent

REASONS FOR JUDGMENT

1. On 28 January 2015, a Judge of the Family Court of Australia, on the application of the Secretary of the Department of Family and Community Services (“DFCS”), made an Order, until further order, restraining Mr Haura (“the father”) and Ms Annissa (“the mother”) from removing or attempting to remove a female child B born in 2014 from the Commonwealth of Australia.

2. Also on that day, Orders were made, pending further order, restraining the father and the mother from aiding, abetting or procuring any person to perform a procedure commonly known as female genital mutilation (“FGM”) on the child.

3. The history of the matter is set out in the Judgment of Cleary J delivered on 28 January 2015.

4. In her Reasons for Judgment, her Honour found that the evidence fell into five categories and, in a carefully considered Judgment, she set out the whole of the evidence available to her as follows:

   28.      … 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

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

   30.      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. 

   31.      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.

   32.      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

   33.      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.

   34.      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.

   35.      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

   36.      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.

   37.      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]”.

   38.      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.”

   39.      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”.

   40.      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. 

   41.      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. 

   42.      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.”

   43.      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

   44.      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. 

   45.      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

   46.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.

   (Footnotes omitted)

THE PRESENT PROCEEDINGS

1. The father and the mother wished to travel to Country G with the child for the purpose of attending a family wedding, leaving Australia on Tuesday 1 August 2017. Negotiations were conducted with the Secretary of the DFCS which culminated in Consent Orders being signed by the Crown Solicitor, on behalf of DFCS, and the solicitor for the parents, which would permit the proposed travel to Country G by the parents and the child, and remove the child’s name from the Airport Watch List.

2. The orders restraining the parents from procuring female genital mutilation on the child are continued by the proposed Consent Orders.

3. The Consent Orders were forwarded to the Family Court of Australia on 28 July 2017 for consideration by the Docket Registrar.

4. The Docket Registrar declined to make the Orders on the basis of the material available then to her, and the matter was listed was listed before me at 3.00 pm on 31 July 2017.

5. Because this is a matter in which there are allegations of abuse or family violence, the provisions of rule 10.15A of the Family Law Rules 2004 (Cth) (“the Rules”) are engaged. Those provisions are set out below:

   RULE 10.15A

   Consent parenting orders and allegations of abuse or family violence

   (1)  This rule applies if an application is made to the court in a current case for a parenting order by consent.

   (2)  If an application is made orally during a hearing or trial, each party, or if represented by a lawyer, the party’s lawyer:

   (a)  must advise the court whether the party considers that the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence;

   (b)  must advise the court whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence; and

   (c)  if allegations of abuse or family violence have been made—must explain to the court how the order attempts to deal with the allegations.

   (3)  For any other application each party, or if represented by a lawyer, the party’s lawyer:

   (a)  must certify in an annexure to the draft consent order whether the party considers that the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence;

   (b)  must certify in the annexure whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence; and

   (c)  if allegations of abuse or family violence have been made—must explain in the annexure how the order attempts to deal with the allegations.

6. There was no attempt on behalf of the parents to comply with rule 10.15A. No affidavit was filed by the father or the mother in satisfaction of the requirements of the Rules. I note that the parents are not Australian citizens and there is no evidence that they intend to return permanently to Australia to live here with the child.

7. In compliance with the Rules, the applicant (DFCS) relied upon an affidavit sworn by Ms C, who is a manager case worker employed by DFCS. Ms C deposed:

   Since this matter was last before the Court, NSW Police have completed their investigations in relation to allegations that the Mother and Father had planned to travel to [Country G] with [the child] for FGM. The brief of evidence was in turn considered by the Office of the Director of Public Prosecutions (“ODPP”).

   On 7 March 2017, I received an email from Sergeant [E], advising that the ODPP had advised NSW Police that they did not recommend that any charges be laid in relation to the matter.

8. A copy of the email from Sergeant E was annexed.

9. Ms C deposed that DFCS received a request from the solicitors for the parents on 28 June 2017 to agree to travel with the child to Country G.

10. On 19 July 2017, two case workers from DFCS met with the mother and the father in their home. Ms C deposed:

    On 19 July 2017, Family and Community Services caseworkers [names] met with the Mother and the Father in their home. They spoke with each parent individually about a number of matters including the family, their current circumstances, and also their understanding of, and views about, FGM. Annexed to this affidavit and marked with the letter “F” … is the handwritten notes taken of the conversations with the Mother and with the Father on 19 July 2017.

    After the interviews occurred on 19 July 2017, I completed the Secondary Assessment in consultation with [the case workers]. We have also now received information from the Department of Human Services, Victoria, confirming that there have been no reported child protection issues arising since the family have been living in Victoria.

11. A copy of the Secondary Assessment is annexed to the affidavit of Ms C.

12. Ms C deposed:

    After completing the assessment referred to above, the Secretary is of the view that the risks to [the child] being exposed to FGM, should she be permitted to travel to [Country G], are low. Accordingly, the Secretary is of the view that it is appropriate to seek to have her name removed from the Airport Watch List.

    The Secretary remains of the view, however, that the injunction in relation to FGM should remain in place, and be made on a final basis.

13. As was the case before Cleary J, the evidence in relation to the risk to the child is untested.

14. I am conscious of the fact that both the mother and the father told the case workers that they were aware of the fact that FGM was illegal and that they had no intention of subjecting the child to the procedure.

15. I am also conscious of the fact that, when interviewed by the police, both the mother and the father made similar statements. What is not clear is what has changed.

16. The mere fact that the police or the ODPP have determined that it is not appropriate to lay charges in the matter is not definitive. It would appear that the evidence which was available to the ODPP was evidence of conversations about the possibility of FGM being performed on the child. It may be that the reason charges are not being preferred is that those conversations, taken alone, do not constitute an offence. That does not, however, mean that they do not suggest the existence of a risk of harm to the child.

17. The substantive proceedings have not yet been determined and the evidence in relation to the nature of the risk has not yet been examined.

18. Before Cleary J, it was submitted by counsel for DFCS that:

    If the risk is realised, the consequences for [the child] are profound and irreversible. FGM is considered a violation of human rights. There are significant immediate and longer term health risks for girls on whom FGM procedures are performed. There are longer term risks to their physical sexual functioning and their emotional and cultural experiences of sexuality.

19. The only change in the evidence before me is that the ODPP have made a decision not to prefer charges against the parents.

20. It would seem that part of the reasoning process of DFCS in their assessment of risk is an assumption that the parents will return with the child from Country G to live in Australia. There is no evidence from the parents to that effect and neither is there any evidence from the parents such as would demonstrate that the proposed Consent Orders address the real risk to the child as found by Cleary J.

21. I do not consider that a low level of risk, as assessed by DFCS, is an acceptable risk having regard to the serious and irreversible nature of the harm to the child.

22. For those reasons, I have declined to make the Consent Orders.

23. The matter remains in the pool of cases awaiting allocation to a Judge. In order to progress the matter, I will, on my own motion, appoint an Independent Children’s Lawyer for the child.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 August 2017.

Associate: 

Date:  1/8/2017