Borchard & Falko

[2021] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

Borchard & Falko [2021] FCCA 391

File number(s):	MLC 3445 of 2014
Judgment of:	JUDGE MCNAB
Date of judgment:	2 February 2021
Catchwords:	FAMILY LAW – applicant mother seeks recovery order – respondent father has withheld child – father raises historical and current concerns in relation to child’s welfare and care whilst child is with the mother – proceedings adjourned so that a s69ZW report can be obtained – proceedings adjourned so that DFFH representative can give evidence at hearing.
Number of paragraphs:	29
Date of last submission/s:	2 February 2021
Date of hearing:	2 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:	2 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The further hearing of the Mother’s application filed 28 January 2021 be adjourned to
5 February 2021 at 11.30am at the Federal Circuit Court of Australia at Melbourne for Interim Defended Hearing.

2.A representative from the Department of Health and Human Services who has personal knowledge of this matter be available to give evidence by Microsoft Teams at the adjourned date on 5 February 2021.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

B.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.

C.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.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.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 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:

INTRODUCTION

1. This is an application for the recovery of a child, X born in 2014 (“the child”), who has been the subject of final Court orders since 15 September 2014.

   BACKGROUND

2. This matter has a long procedural history before the Court.

3. An originating application was filed by the Mother on 23 April 2014, and final orders were made on 15 September 2014 for the parents to have equal shared parental responsibility for the child.

4. The Father sought to reopen the matter by filing an application seeking final orders on 1 February 2019.  Interim orders were made on 18 February 2019 which relevantly provided for:

   (1)the parties to have equal shared parental responsibility for the child;

   (2)the child to live with Mother; and

   (3)the Father to spend time with the child on a week about arrangement (subject to him obtaining permanent accommodation within a 30 minute commute of the child’s school), half of all school holidays, and on other special occasions.

5. On 18 November 2020, the matter was listed for Final Hearing in May 2021.

6. On 28 January 2021, the Mother filed an urgent application in a case seeking an abridgment of time for the hearing of the matter, as the Father had allegedly withheld the child from her since January 2021 in contravention of the interim orders made on 18 February 2019. The Mother sought for the interim orders to remain and place and for a recovery order to be made in relation to the child.

7. The Father raises safety concerns in relation to the child whilst she is in the care of the Mother.  The Father file an affidavit on 1 February 2021, where he gives evidence that X was admitted to the City B Hospital by her Mother with a laceration to her left buttock on Thursday 14 January 2021.  The Further also recounts correspondence from the Mother’s solicitor, which suggests that the child sustained the injury as a result of sitting on a Barbie doll in the bathtub. In his affidavit, the Father alleges that the child was hurt by the Mother and the wound was intentional. 

   CONSIDERATION

   The Father’s Views

8. The Father’s allegations in relation to the wellbeing of the child while in the care of the Mother is the subject of a substantial amount of evidence filed by the Father over a period of time and, in some part, that history is recounted in the Father’s affidavit: see Father’s affidavit at [29] – [56]. Reports have also been made by various General Practitioners about the care of the child, in particular, by Dr C from the D Medical Centre. 

9. There has been suggestions that the child was burnt by a cigarette and the child was presented to the D Medical Centre on 2 February 2020, for a burn on the wrist. The Father has obtained a medical report from a Dr E, which report and is relied upon by the Father in an application to vary a Family Violence Interim Intervention Order, in an application before the Magistrates Court of Victoria, which was heard on 1 February 2021.

10. In relation to the suggestion that the child was burnt by a cigarette, Dr E states at [24] of his report that:

    23. In early 202 I was contacted by Mr Falko and sent photographs of ulcerated skin which was reported to me to be an injury sustained by X.

    24. I was informed that the skin alterations were due to cigarette burns, and that X’s mother had allegedly described X brushing past a lit cigarette she was holding and accidently receiving a burn. 

    25. The pictures I was shown was of a circular ulcer. 

    26. It was my opinion that if this ulcer was due to a burn from a cigarette then the lit end of the cigarette would need to have been applied to the skin in a perpendicular angle and for longer than a fleeting moment. 

    27. It was my suggestion that the skin ulceration was unlikely to have been caused in the manor described to me, and they were far more likely to be a non-accidental injury. 

    28. I recommend an immediate report to Child Protective Services/Victoria Police. 

    29. I have been informed that a forensic expert from the F Hospital in Melbourne produced an expert opinion regarding X’s skin ulcer, indicating that this was likely to be a non-accidental injury. 

11. The Father also refers to a report from the Victorian Forensic Paediatric Medical Service titled ‘Vulnerable Child Assessment’ dated 1 September 2020 (“the VFPMS report”) written by

    
    

    Dr G, which was attached to records subpoenaed from the Region H Health by the Father and were provided to the Father on 2 February 2021.  The VFPMS report goes into detail in relation to a series of photographs that were taken of the child showing, what was alleged to be, bruising and marks on the child’s body taken in 2019 and 2020.  The report notes that the author of the report had not met with X and was entirely dependent on the material provided when forming opinion. Further the reports notes the limitations of the material the Dr G was provided with, including that a colour wheel was not provided and light exposure and shadowing can mask or mimic markings on the skin. However, the VFPMS Report, under the heading ‘Bruising’ at page 9, makes reference to a series of bruises and notes at the end of that page:

    Accidental impacts commonly result in less than 3 bruises per event and these bruises are commonly small, discrete, not clustered or patterned, but are located over bony prominences in the front of the body.  This was not the bruising pattern or distribution seen in this child’s case.

12. This indicates that the Report writer raised concerns that the bruises sustained by the child were not accidental bruises. Further, the report writer states at page 10 that:

    Bilateral, both sides of the body, linear and patterned bruises are more frequently seen as a result of inflicted trauma then accidental trauma and are commonly seen following accidental falls and collisions or play with a sibling.  Accidental trauma rarely results in bruising located symmetrically on either side of the body.

    …

    Overall, it is possible that some of X’s bruises were sustained during play and normal activity in a child of this age, but the multiple dates of trauma resulting in bruising, in the same and symmetrical locations, bilateral bruising on the same date patterning the bruises, and the large size and clustering of some of the bruises are features that generate concern regarding a non-accidental cause. 

13. The report also makes reference to the alleged cigarette burns.  The report writer notes at page 10 that:

    Images 13 and 14 demonstrate a wound on the right forearm that is in a state of healing.  The images were taken on the same day and are presumed to be of the same wound. 

14. In relation to the cigarette burns, the report writer notes at page 10 that Senior Constable Mr J, a member of City B’s Sexual Offences and Child Abuse Investigation Team (“SOCIT”), stated that:

    …X said that she was riding a bike and she rode into her Mother who had a cigarette in her hand which burnt her.  Burns are thermal heat skin injuries.  Cigarettes (the hot end of a burning cigarette) can cause a significant contact burn in a short period of time (seconds).  Cigarette burns are typically small, well circumscribed, circular injuries that may demonstrate a punched out crater appearance with a raised edge.  The wounds may contract and wrinkle during healing.  When deliberately inflicted they are often multiple, clustered and occur on exposed areas of skin. Rarely, can they occur as a result of accidental contact.  It is possible that the wound in images 13 and 14 was caused by cigarette burn however it does not have the typical appearance of a deliberately inflicted cigarette burn.  Other mechanisms of trauma to the skin, such as an infected insect bite cannot be excluded. 

15. The concerning aspect of the report is that the Mother has offered an explanation that the injury was caused as a result of an accidental burning with a cigarette and the opinion is that the wound of the kind in this case, was unlikely the result of an accidental contact.  The Mother does not suggest that the injury was caused as a result of an insect bite. 

16. In his material the Father outlines what, he says, is a very long history of involvement by medical professionals with the child, concerns in relation to the child’s health from a very early age and that concerns were raised by the F Hospital in relation to non-accidental injuries sustained by the child. 

17. The Father raises legitimate concerns in relation to the care and welfare of the child whilst in the care of the Mother.  Those matters have been raised, and dealt with, over a period of time and they do not have the flavour of overzealous complaints or complaints about non-existent matters.  There is no suggestion in any of the material – including in the subpoenaed records, Dr E report Dr E and the VFPMS Report – that these are somehow manufactured complaints.  These are matters of critical concern.

18. The Mother indicates that she is engaging with the Department of Health and Human Services, now the Department of Family, Fairness and Housing (“DFFH”), and is seeing them regularly. She also states that she is in contact with a Child Protection case worker and that she is voluntarily seeing a Mr K, from L Health who has been assisting her in the care of the child, since, at least, the start of the year.

    The Independent Children’s Lawyer’s Views

19. Ms Gleeson, who is the Independent Children’s Lawyer in this matter, told the Court that she had been informed by Mr K that he visited the Mother’s house twice; that it was messy but not a risk to the child and that he has been working with her on home routine.  Mr K discussed with the Mother the prospect of doing a course called “Circle of Security” which might assist the Mother.  Ms Gleeson informed the Court that Mr K commented that, in relation to the home environment, which is a concern raised in the DFFH reports, that there are no major risks presented by that environment, but there are a lot of small improvements that could be made in and to the house. 

20. Ms Gleeson also told the Court that she had spoken on the day of this hearing to a Child Protection worker, Ms M, who advised that a section 67ZW report was about to be provided.  It was also said that the recommendation from DFFH is that the shared care arrangement which was set in place by the orders of the Court in February 2019 should remain in place. 

21. Ms Gleeson recommended that those orders be maintained but subject to orders requiring:

    (1)the Mother to enrol in the programme ‘Circle of Security’, doing so as soon as possible and providing evidence of her enrolment; 

    (2)the Mother continue to engage with L Centre and provide evidence of continuing involvement;

    (3)the Mother maintain a safe and clean household and adopt strategies as recommended by the DFFH and L Centre for the purposes of ensuring that the household remain safe and clean; and

    (4)the parties engage in mediation arranged through L Centre for the purposes of agreeing on a workable communication strategy between each other.

22. Ms Gleeson also told the Court that she had spoken to the hospital in relation to what I refer to as the ‘Barbie Doll injury’ – being the laceration to the child’s buttock in January 2021. Ms Gleeson informed that the Court that she was told that the injury was superficial and that Child Protection were not particularly concerned.

    The Mother’s Views

23. The Mother lives with her partner who is 26 years old. She has been living with her partner for six months and she had the care of his two children who are three and five years old, who live with X and her half-brother. X’s half-brother is organised to start Prep at the same primary school as X.   The Mother sees a psychologist every three weeks, is involved with Centacare, and it is likely that she will obtain employment in two weeks’ time working in a call centre. 

24. The Mother seeks that the status quo to be maintained.  The Mother refers to four previous incidents of withholding by the Father and noted that the Father had moved back to Melbourne, which has had impacts on the operation of the orders that were made in February 2019. 

    Consideration

25. This case raises real concerns because, despite a number of reports from the DFFH, which involve reports of abuse and failure of the parents to care for their children, the recommendation is that there will be no involvement by the DFFH. On that basis, it is effectively left to the Court to make arrangements for the parents and the child which is of significant concern, because the Court is not in a position to investigate complaints as that is the role of the DFFH. 

26. I have serious concerns about this case. Before making amendments to the parenting arrangements in this matter, the Court must be provided with a full report from the DFFH, which deals with the matters that have been raised in the VFPMS Report in detail. The purpose of such a report is to give the Court some comfort that the child in this matter will not be subjected to injury in the Mother’s household.  I am not prepared to make orders requiring the Father to comply with the existing parenting orders until that report becomes available (which it is understood will be provided shortly).

27. I make that comment because of the long-standing and serious allegations that the child is not being adequately cared for and has being subjected to injury.  The report is in relation to the injury caused by a cigarette raise real concerns and those concerns are expressed in the medical opinion of Dr E.  I am of the view that is now incumbent on the Mother to demonstrate, with real clarity, that she is in a position to properly care for the child. 

28. A concern has been raised in relation to the Father that he has his own issues and has been a person who has had mental health concerns, which included periods of time in in-patient care in 2017 and 2018 for mental health issues.  However, there is also a report from a Dr N which indicates that the Father’s health issues do not affect his capacity to parent. 

29. I have outlined the concerns raised in reports and I am not satisfied that the arrangements that are currently in place are sufficient to protect the child. On that basis, the Court will make orders this matter be listed for an Interim Defended hearing on 5 February 2021 so that a DFFH report can be obtained and so that somebody from DFFH is available to give evidence to speak to the report. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       4 March 2021