Borchard & Falko (No 2)

This matter concerned parenting orders between Ms Borchard (the Mother) and Mr Falko (the Father) regarding their child, X. The dispute involved allegations concerning the welfare and care of the child, with the Mother seeking a recovery order and the Father raising concerns about the child's well-being. The Federal Circuit Court of Australia was required to determine interim parenting arrangements.

The court was tasked with determining the legal issues surrounding the child's living arrangements and time with each parent, considering the evidence presented by the Department of Family, Fairness and Housing (DFFH), a section 69ZW report, and oral testimony. Key considerations included the Mother's home environment, her engagement with support services, the relationship between the Mother and child, and the Father's concerns regarding potential injuries to the child. The court also had to assess the best interests of the child, particularly in relation to maintaining her schooling and connection with her siblings.

Justice McNab's reasoning focused on the ongoing and intensive support provided by the DFFH to the Mother and her positive response to this assistance. The court found that the Mother's home environment was reasonably organised and that she was actively engaging with support services, including Protective Services. The evidence of a loving relationship between the Mother and child was considered significant. While acknowledging the Father's legitimate concerns, the court concluded that the child's welfare concerns were adequately addressed by the proposed orders, the continued involvement of external services, and the Mother's engagement with them. The court also noted that if the Father were to retain care, the child would be separated from her siblings and her school.

The court ordered the discharge of all previous parenting orders. It was ordered that the Father and Mother have equal shared parental responsibility, with the child to live with the Mother. Specific provisions were made for the Father to spend time with the child, including conditions related to his accommodation and proximity to the child's school. The orders also detailed arrangements for communication, school holidays, birthdays, and special occasions, along with requirements for ongoing engagement with support services and mental health practitioners for both parents. The court also imposed restraints on the parties regarding enrolling the child in extracurricular activities, contact with individuals affected by substance abuse, physical discipline, denigrating the other parent, discussing proceedings with the child, passing messages through the child, questioning the child about the other household, and involving the child in disputes. The matter was listed for a final hearing.