Borchard & Falko (No 2) [2021] FCCA 392 (5 February 2021)

Last Updated: 21 July 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Borchard & Falko (No 2) [2021] FCCA 392

File number(s):	MLC 3445 of 2014
Judgment of:	JUDGE MCNAB
Date of judgment:	5 February 2021
Catchwords:	FAMILY LAW – short form reasons given pursuant to s69ZL of the Family Law Act 1975 – evidence given in relation to assessment of risks to the child – where the father has given evidence in relation to concerns about the child’s welfare in the care of the mother – where evidence has been given regarding protection measures taken.
Legislation:	Family Law Act 1975 (Cth) s 69ZL.
Cases cited:	Borchard & Falko [2021] FCCA 391
Number of paragraphs:	18
Date of last submission/s:	5 February 2021
Date of hearing:	5 February 2021
Place:	Melbourne
Counsel for the Applicant:	Mr D Robertson
Solicitor for the Applicant:	Ballarat Lawyers
The Respondent:	Appearing in Person
Solicitor for the Independent Children's Lawyer:	Heinz Law

ORDERS

		MLC 3445 of 2014
BETWEEN:	MS BORCHARD Applicant
AND:	MR FALKO Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	5 FEBRUARY 2021

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. All previous parenting Orders be discharged.
2. The Father be restrained from applying to the Magistrates’ Court of Victoria for this Order to be suspended and must make any application (including urgent applications) in relation to this Order to the Federal Circuit Court in Melbourne.
3. The Father and the Mother have equal shared parental responsibility for the child, X born in 2014 (“the child”).
4. The Father deliver the child to the Mother at 5.30pm on Friday 5 February 2021 by delivering her to McDonald’s Restaurant, O Street, City B.
5. The child live with the Mother.
6. Commencing from Friday, 12 February 2021, and on provision of his current address to the other parties, the child spend time and communicate with the Father as follows:

(a) Subject to the Father moving to permanent accommodation within a 30-minute commute of the child’s school and providing written evidence of same to the Mother’s solicitor (such as a lease agreement), each alternate Friday from the conclusion of school time (or 3.15pm if a non-school day) to the conclusion of school the following Friday (or 3.15pm if a non-school day);
(b) In the event the Father is unable to attain accommodation as set out in paragraph 5(a) above, then each alternate Friday from the conclusion of school time (or 3.15pm if a non-school day) to the commencement of school Monday (or 9.00am if a non-school day);
(c) For one half of each term school holiday as agreed and failing agreement the week will commence on the weekend when the child would normally be with the Father;
(d) For one half of the summer school holidays on a week about basis, with the time commencing at 3.15pm Friday on the weekend when the child would ordinarily be with the Father save for the period from 3pm Christmas Eve to 3pm Christmas Day;
(e) From 3pm Christmas Eve to 3pm Christmas Day in odd numbered years and from 3pm Christmas Day to 3pm Boxing Day in even numbered years, provided that the child spend time with the Mother from 3pm Christmas Day to 3pm Boxing Day in even numbered years and from 3pm Christmas Eve until 3pm Christmas Day in odd numbered years.
(f) On the child’s birthday, if the child is ordinarily in the care of the Mother, for a minimum of 2 hours if the birthday falls on a school day (and in default of agreement from the conclusion of school until 6.00pm) and a minimum of four hours if the birthday falls on a non-school day (and in default of an agreement from 10.00am to 2.00pm); provided that if the child is with the Father on her birthday, the child will spend a minimum of 2 hours with the Mother if the birthday falls on a school day (and in default of agreement from the conclusion of school until 6.00pm) and a minimum of four hours with the Mother if the birthday falls on a non-school day (and in default of an agreement from 10.00am to 2.00pm).
(g) On Father’s Day, if the child is ordinarily in the care of the Mother, from 5.00pm on the Saturday before the day until the commencement of school on Monday, provided that if the child is in the care of the Father on the Mother’s Day weekend, the child spend time with the Mother from 5.00pm on the Saturday before Mother’s Day until the commencement of school on Monday;
(h) By telephone, Skype or other electronic means between 6.00pm and 7.00pm on each Wednesday, provided that if the child is spending a week with the Father the child communicate with the Mother by telephone, Skype or other electronic means between 6.00pm and 7.00pm on each Wednesday;
(i) Any other time agreed between the parties in writing.

7. On any special occasions when the child is not in their respective care, each party is permitted to telephone the child between 6.00pm and 7.00pm on that day while the child is in the other party’s care, and the party with care of the child will facilitate all reasonable requests of the child to telephone the other parent during these times.
8. For the purpose of these Orders school holidays will be deemed to commence on the last day of school and conclude at the commencement of the first day of school.
9. All changeovers not occurring at the child’s school occurs at the McDonald’s Family Restaurant on O Street should the Father have permanent accommodation in City B or if the Father is not residing in the City B environs, the McDonald’s Family Restaurant on the P Freeway (incoming to Melbourne side at Suburb Q), unless otherwise agreed between the parties in writing.
10. The child remains enrolled at R School in City B, unless otherwise agreed to in writing.
11. The parties are at liberty to:

(a) Have a nominee, who is known to the child to facilitate transport and changeover; and
(b) Take the child interstate provided the time will not impede on the other parent’s time with the child, and party travelling with the child has provided 14 days written notice of the proposed travel dates and proposed itinerary.

12. The parties will communicate in all matters relating to the child by way of a communication book which will travel with the child, save for urgent situations where the parties are to telephone the other as soon as practicable.
13. The Mother, without admitting the need:

(a) Continue to engage with Family Services at L Contact Centre for so long as L Contact Centre deem this necessary and to provide evidence to the ICL of the continued engagement each month;
(b) Continue to engage with her psychologist and/or other mental health practitioner for so long as that person deems this necessary and to provide evidence to the ICL of the continued engagement each month;
(c) Do all things necessary to enrol in and complete a Circle of Security program, through S Family Services and/or T Centre, and to provide the ICL and the other party a copy of the certificate of completion within 7 days from receiving same;
(d) Continue to engage with DFFH (until such time as they close their file) and follow all reasonable recommendations of the relevant case workers;
(e) Maintain a reasonably clean and tidy home environment for the child.
(f) The Father, without admitting the need:
(g) Continue to engage with DFFH until such time as they close their file and follow all reasonable recommendations of the relevant case workers; and
(h) Continue to engage with his psychologist and/or other mental health practitioner for so long as that person deems this necessary and to provide evidence to the ICL of the continued engagement each month.

14. Each party must:

(a) Ensure that the child attends all medical appointments and allied health appointments including but not limited to counselling as recommended by DFFH;
(b) Enrol in and engage in counselling as directed by the Independent Children’s Lawyer to improve their communication skills with each other in all matters pertaining to the care of the child;
(c) Ensure that the child attends school daily and in the event of non-attendance for health reasons provide a Medical Certificate within 24 hours to the other party;
(d) Advise the other immediately in the event that the child suffers any serious illness or serious injury, together with the name, address and telephone number of any health professional or health facility attended by the child and authorise such person or facility to provide any information requested by the other parent relating to the health of the child;
(e) Authorise any medical practitioner, psychologist or other health care professional seen by the child that they are at liberty to communicate with the other parent so as to provide the other parent at their expense with any information about the child that they should seek; and
(f) keep the other informed of their current residential address, mobile telephone number and any available email addresses, and advise the other parent of any change thereto within 24 hours of such change.

15. Each party is at liberty to:

(a) Attend any and all such extra-curricular activities, school functions, events, parent-teacher interviews and other usual activities attended by parents, subject to school or sporting group policy; and
(b) Obtain from the child’s school all reports, newsletters, photographs and notices available to parents, each at their own cost.

16. Both parties and/or their agents are restrained from:

(a) Enrolling the child in any extra-curricular activity of a sporting, art, craft or out-of-school educational nature unless there is consensus between both parents confirmed by email that both parents will:

(i) Regularly provide to the other parent all details as to the commitments required of both parents and the child;
(ii) Agree on the costs of such activity and their respective contributions towards the costs; and
(iii) Agree that they will ensure the attendance and participation of the child during the period of the time that the child lives with them.

(b) Bringing the child into contact with any person affected by, or suspected to be affected by, illicit substances, excessive prescription substances or excessive alcohol, or that has any illegal drugs in their possession;
(c) Physically discipline the child;
(d) Abusing, insulting, belittling, rebuking or otherwise denigrating the other Party or other party’s family in the presence or hearing of the child, and from permitting any other person so to do;
(e) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Child, or any of them, and from permitting any other person to do so;
(f) Passing messages through the child;
(g) Unreasonably questioning the child about happenings in the other party’s household; and
(h) Involving the child in any form of dispute between the parties or otherwise.

AND THE COURT NOTES THAT:

1. The matter remains listed for Final Hearing in the Federal Circuit Court of Australia at Melbourne on 17 May 2021 at 10.00am with an estimated hearing time of 3 days.
2. 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 these particulars are included in these orders.

100. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

4. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
5. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
6. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Borchard & Falko (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Judgment delivered Ex Tempore – Revised From Transcript)

Judge McNab:

BACKGROUND

1. In this matter, I must make a decision an interim basis in relation to parenting issues. In doing so, I will give short form reasons as I am able to do pursuant to s69ZL of the Family Law Act 1975 (Cth) (“the Family Law Act”). A decision was required to be delivered in order to determine arrangements for the relevant child’s schooling.
2. This matter was part heard before me on 2 February 2021 on an interim basis, in relation to the a recovery order sought by the Applicant Mother, the Respondent Father’s allegations in relation to the welfare and care of the child X born in 2014, and further parenting matters. Short reasons for judgment were delivered and orders adjourning the matter to 5 February 2021: see Borchard & Falko [2021] FCCA 391. These reasons should be read in conjunction with those reasons. I now provide supplementary reasons for Judgment, which will provide clarity for the interim orders that the Court makes in relation to this matter and which takes into account oral evidence given at the hearing. In delivering these reasons in short form, regard must be had to the totality of the reports referred to herein, the evidence given at the hearing and the exchanges between the Court, the parties and their legal representatives.

DFFH EVIDENCE

3. The hearing of this matter on 2 February 2021 was adjourned until 5 February 2021, primarily so a representative of the Department of Health and Human Services, now the Department of Family, Fairness and Housing (“DFFH”), with a personal knowledge of the matter could be available to give evidence in the matter.
4. Ms U, who is a case manager from the DFFH, gave evidence at the hearing on 5 February 2021. The Court also received a response on 5 February 2021 pursuant to a section 69ZW order made on 18 November 2020 (“the s69ZW report”), and a comprehensive report has been provided by Ms M.
5. During the hearing on 2 February 2021 the Court raised concerns about the risk to the child and set out in detail the concerns by reference to reports that were available to the Court. In particular, the Court:

(1) asked for photographic evidence of the current state of the Mother’s residence: see Transcript No. ... (“the First Transcript”), p. 6, line 31 – p. 7, line 7; and
(2) asked for evidence and submissions about protective mechanisms and further issues raised by the section 69ZW Report: see the First Transcript, p. 7, line 27 –36; p. 10, line 7 – p. 12, line 30.

6. The mother provided photographic evidence of the state of her home, taken shortly after the hearing on 2 February 2021. The photograph showed the house to be reasonably well organised and not suggestive of chaotic neglect.
7. Having heard the evidence of Ms U on 5 February 2021, and having read the s69ZW report provided by DFFH, the Court is persuaded that there is active involvement by support workers whilst the child is in the care of the Mother and that Protective Services also have regular ongoing involvement.
8. The s69ZW report gives evidence of a DFFH representative visiting the Mother’s home, the DFFH representative giving guidance and assistance to the Mother and the mother actively responding to those concerns, most particularly in relation to the home environment.
9. Whilst the paragraphs are not numbered, the section 69ZW Report states, under the heading ‘Home Environment’, that:

It was evident Ms Borchard has done a lot of work with cleaning the home. The lounge area was free of clutter and appeared to have recently been vacuumed, the kitchen area was clean, and the table and the floor were free from food scraps and smelled as if recently cleaned. The hallway leading to the children’s room was also clear of clothing and clutter. X and [her half-brother’s] room was a bit messy but presented appropriate and had bedding and age appropriate toys in the room.

CONSIDERATION

10. The mother has been given assistance with household routines. She is also receiving assistance from a support worker who she is seeing on a regular basis from an external organisation.
11. The evidence of Ms U, who has experience in child welfare work, was that the child and the mother exhibited a loving relationship. The child was not scared of the mother and she described a warm and loving relationship between the mother and the child. I regard that evidence as significant.
12. The Father has legitimate concerns which he has raised during these proceedings. However, it seems that, on the basis of the DFFH report, that he is presenting the child on a fortnightly basis to the hospital for the child to be inspected for any injuries. That information is confirmed by the Father’s material.
13. I do note that Ms U gave evidence that, in relation to an injury suffered by the child to her buttocks earlier in the year, there has been a preliminary finding that, on the balance of probabilities, was likely a result of parental discipline and that incident has been referred for investigation.
14. The Mother is aware of the Court’s concerns in relation to the child’s welfare in this matter. The Mother is engaging with the DFFH service and Protective Services. There are also no concerns raised by the child’s school in relation to the child’s welfare and the school is aware of the protective concerns of the DFFH. I note particularly that the Child is attending a local school with her siblings and that school’s teachers have been active in monitoring the child and are aware of DFFH’s involvement. If the Father retained the child in his care she would be removed from that school and separated from her siblings.
15. In my view, it is appropriate, and in the best interests of the child, for the child to resume living with the Mother and for that time to commence in accordance with the orders that were previously made. In particular, if the father is not to reside within a 30 minute commute to the child’s school, then the child spend time with the father on alternate weekends.
16. I am mindful that there is significant conflict between these parties. They are not communicating. If the mother is able to settle into a routine with the child, receive the assistance from the DFFH and Protective Services, and get the benefit of the assistance that she is receiving, I am prepared to make orders giving effect to the parenting arrangements that have been previously ordered by the Court.
17. In light of reasons that I gave on 2 February 2021, it might seem counterintuitive for the Court to make the orders that it has. However, the Court has had regard to all the evidence and, in particular, the evidence of the ongoing, and reasonably intensive, support given by the DFFH and the mother’s positive response to the assistance that she has, and is being, given. The concerns for the welfare of the child are met by the terms of the orders, the ongoing involvement of external services and the Mother’s engagement with those services. The DFFH has close involvement in this matter and there is significant involvement by the Independent Children’s Lawyer and the Father. On that basis, in the event that the DFFH, Independent Children’s Lawyer or the Father becomes aware of any further information that indicates that the child is at an unacceptable risk if she remains in the care of the Mother an application may be made to urgently review these orders.

CONCLUSION

18. On the basis of the consideration set out above, the Court will make the interim orders proposed by the Mother with the amendments suggested by the Independent Children’s Lawyer.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated: 4 March 2021