Department of Human Services and Brouker & Anor

[2010] FamCA 742

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES & BROUKER AND ANOR [2010] FamCA 742

FAMILY LAW – CHILDREN - Best interests – Application by Child Protection Authority – Watch List order – injunction from removing child from the Commonwealth for the purpose of marriage – Surrender child’s passport, restraint against applying for child’s passport

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Department Of Human Services 

1st RESPONDENT: Mrs Brouker

2nd RESPONDENT: Mr Brouker

FILE NUMBER: MLC 5756 of 2010

DATE DELIVERED: 24 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 2 July, 16 July and 30 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Ms Noble

COUNSEL FOR THE 1ST RESPONDENT: N/A

SOLICITOR FOR THE 1ST RESPONDENT: In person

COUNSEL FOR THE 2ND RESPONDENT: N/A

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The order made on 25 June 2010 restraining the respondents Mrs Brouker and Mr Brouker by themselves, their servants and/or agents from removing or attempting to remove or causing or permitting the removal of the child V (female) born … July 1996 (“the said child”) from the Commonwealth of Australia remain in full force and effect.

IT IS REQUESTED THAT

1. The Australian Federal Police give force and effect to paragraph 1 hereof by maintaining the name of the said child on the Watch List at all points of arrival and departure in and from the Commonwealth of Australia and maintain the said child’s name thereon until she attains 18 years of age on … July 2014.

IT IS FURTHER ORDERED THAT

1. Paragraphs 1 and 2 hereof be and are hereby discharged without further order of the Court upon the child attaining the age of 18 years in accordance with paragraph 2 hereof.

2. As soon as practicable the solicitor for the Department of Human Services serve a sealed copy of this order upon the proper officer of the Australian Federal Police at AFP Operations Coordination Centre.

3. The respondents forthwith deliver to the Registry Manager of the Melbourne Registry of the Court any Australian passport in the name of the said child, such passport to be retained by the Registry Manager until the child attains the age of 18 years or otherwise by order of the Court.

4. The respondents by themselves, their servants and/or agents be and are hereby restrained from applying for any passport for and in the name of the child until the child attains the age of 18 years without an order of a Court of competent jurisdiction first had and obtained.

5. A sealed copy of this order be faxed immediately to the Australian Federal Police Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

6. The Marshall and all officers of the police forces of the States and Territories are requested and authorised to give effect to these orders.

7. Liberty be reserved to the said child or any other person having standing to apply to the Court to set aside or vary the restraint in accordance with paragraph 1 hereof from the time that the child attains 16 years of age.

8. Any application made in accordance with paragraph 9 hereof be served on the Department of Human Services together with a sealed copy of this order and the reasons for judgment delivered this day or should the said child not be residing in Victoria at that time the equivalent authority of the State or Territory in which she is residing, to enable the Court to hear the Department’s or that authority’s view on the said application.

9. The applicant’s Initiating Application filed 14 July 2010 be and is hereby otherwise dismissed and the matter removed from the list of cases awaiting hearing.

10. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.           

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Department of Human Services & Brouker and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5756  of 2010

DEPARTMENT OF HUMAN SERVICES  

Applicant

And

MRS AND MR BROUKER

Respondents

REASONS FOR JUDGMENT

introduction

1. On 2 June 2010 the Child Protection Section of the Department of Human Services of the State of Victoria ("the Department") received a report which suggested that the female child of the respondents, V born in July 1996, then aged nearly 14 years, was not attending school.  The report also suggested that the respondents, or one of them, had ceased the child’s schooling as it was intended that she would be getting married.  

2. Upon receipt of that information, the Department interviewed the child and then applied to the Court's after hours service for orders preventing her from being taken out of Australia.  On 25 June 2010 Fowler J made interim ex parte orders in accordance with the Department's application.  The matter was then listed before me. On the first return date the Department made an oral application that the interim orders be made permanent.  I ordered that that application be committed to writing.  It is that last application which is the subject of these reasons for judgement.

The proceedings

1. The Department's application first came before me on 2 July 2010.  The Department was represented by one of its officers and the child's mother appeared on her own behalf. There was no appearance by or on behalf of the father. I extended the interim injunction referred to in the previous paragraph, made orders for the filing and service of any formal application and affidavit in support and any material in response from either the mother or the father and otherwise adjourned the matter for further mention before me on 16 July 2010.

2. On the return date the Department was represented by its Solicitor. There was no appearance by either the mother or the father. The solicitor for the Department advised the Court that the mother was unwell.  I adjourned the matter for 2 weeks. I did not vary the interim injunction and it therefore continued in force.

3. The matter came before me again on 30 July 2010. Again the Department was represented by its Solicitor. The child's mother appeared on her own behalf and there was no appearance by the father despite the fact that, on the basis of a submission by the child's mother, I have been satisfied at all times that he has known about the proceedings and each of its hearings before me.  On that occasion the mother informed me that the father was overseas.

4. In accordance with my earlier orders, the Department had filed and served an Initiating Application and affidavit in support sworn by one of its officers.  No material has been filed by or on behalf of either of the respondents.  However, during all of her appearances the child's mother informed me that she did not oppose any of the orders sought by the Department and was quite relieved that the Court had made the original order referred to above.  There is no evidence to indicate the child’s father’s attitude towards this matter and accordingly, I do not assume that he agrees with the mother.

Relevant facts

1. The only evidence in this matter is given in the affidavit referred to in the previous paragraph.  The child's mother informed me that she did not seek to dispute any of the facts contained in that affidavit and accordingly, I accept them in their entirety.

2. Following receipt of the initial report referred to above, the Department consulted with Victoria Police who indicated that they did not have any relevant information.  On 24 June 2010 two Child Protection Workers employed by the Department went to the respondents' home without notice.  The child was the only person at home.  She indicated -

   that both her parents were at work and would not arrive home until 6 p.m..

   The workers proceeded to interview her without anyone else being present.

3. The child advised the Department's officers that she was born in July 1996 and was aged nearly 14.  Both her parents were born in 1975 and she had a sister born in April 2001.  The officer then swore:

   12. [The child] told [the workers] that she was not attending school as her father had said that he did not like her going to school and because she was engaged to be married and was planning to travel overseas in two to three weeks time in order to meet her fiancee [sic] and be married in [another country].  The child also said that she had been engaged for one month to a 17-year-old man named [name].  [The child] said that she had only seen a photograph of this man.  When asked by [the workers] how she felt about getting married, [the child] told us that she did not know what to say as she had not met her fiancé.  [The child] then said that she had not been forced into the engagement by her parents and that if she changed her mind after meeting her fiancé, she would not have to marry him.

4. The workers discussed the likely expectation on the child of having to have sex with her husband.  They formed the view that she had not considered that prospect.  They discussed issues of abuse with her and she said that -

   … she would be able to tell someone that she did not want to be touched in these places.

   …

   [The child] also said that she had not spoken of her feelings to her parents and that she was not sure what her mother's opinion was regarding the proposed marriage.

   At the end of the interview the workers left a letter for the child to give to her parents requesting them to contact Child Protection.

5. The worker's affidavit concluded:

   It is my belief that it would not be in [the child's] best interests to travel to … to be married as she is a child and she does not appear to understand the consequences of marriage.  Furthermore, she would be deprived of a school education, and she may be at risk of sexual exploitation and emotional harm.

Discussion

Standing

1. The first question is that of the standing of the Department to bring this application. While no challenge has been made to the Department's standing, the respondents were not represented before me and an Independent Children's Lawyer had not been appointed. Section 65C of the Family Law Act 1975 ("the Act") provides:

   A parenting order in relation to a child may be applied for by:

   …

   (c) any other person concerned with the care, welfare or development of the child.

2. The definition of "a parenting order" in section 64B(2) of the Act includes -

   (i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

   The orders applied for by the Department relate to the child's care, welfare or development and are, accordingly, a parenting order in accordance with the legislation. 

3. The applicant, being an officer of the Department, is by virtue of his employment concerned with the care, welfare or development of the child and accordingly has standing to bring this application.

Power to make an order

1. Section 68B(1)(a) of the Act empowers the Court to make -

   an injunction for the personal protection of the child … .

   Accordingly, I have the power to grant the relief sought by the Department.

Independent Children's Lawyer

1. At the hearing on 2 July 2010, the mother informed me that the child was sitting outside the Court.  After I had indicated my view to the applicant and the mother, I directed that the child be brought into Court and sit at the bar table.  I had a brief discussion with her and gave a generalised explanation of my approach.  I did not regard it as being appropriate that I obtain her view, given my observation that she appeared to be extremely nervous and apprehensive.

2. I have also given consideration to the question of appointing an Independent Children's Lawyer in accordance with section 68L of the Act. Particularly given the child's age, her views may be seen as being important. However, by virtue of the way in which I propose determining this matter, I have decided that such an appointment is unnecessary.

Discussion

1. I accept the submission on behalf of the Department that permitting the child to be taken overseas for the purpose of marriage in any circumstance is contrary to her welfare.  In my view, a 14-year-old child would not have the understanding of the significance of marriage which would be attributable to an adult.  The evidence of the Department referred to above supports this view.

2. Sections 11 of the Marriage Act 1961 provides:

   11.  Subject to section 12, a person is of marriageable age if the person has attained the age of 18 years.

3. Section 12 of the same Act empowers a Judge or Magistrate of a State or Territory Court to authorise the marriage of a person aged between 16 and 18 years in a matter in which -

   the circumstances of the case are so exceptional and unusual as to justify the making of the order.

4. Accordingly, neither party to the child's potential overseas marriage is of marriageable age and that marriage therefore could not be celebrated in Australia.  The fact that the marriage could not be celebrated in Australia is, in itself, a reason for not permitting a child who is resident in Australia and subject to this Court's jurisdiction, to be taken out of the country for the purpose of marriage.  Any decision to the contrary would be contrary to the child's welfare.

Conclusion

1. Accordingly, I will extend the interim injunction preventing the child from being taken out of Australia prior to her 18th birthday.  At that time she will become an adult and be outside the jurisdiction of this Court.  Consistent with the provisions of the Marriage Act 1961 quoted above, I will grant leave to the child or any other person who may have standing to apply to a Court of competent jurisdiction to set aside or vary the injunction preventing her from being removed from Australia for the purpose of marriage but only from the time that she attains 16 years of age.  Any application will be required to be served on the Department together with a copy of these reasons for judgment and a sealed copy of the orders I propose making this day, to enable the Court to hear the Department’s view on it. Should the child not be residing in Victoria at that time the equivalent authority of the State or Territory in which she is residing should be served with the those documents, to enable that authority to be heard in place of the Department.

2. The Department has also sought the retention of the child's passport by the Court together with an injunction restraining either of the respondents, their servants or agents from applying for a passport for the child.  The Department accepted that such order needed to be restricted to an Australian passport and I will order accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  24 August 2010