Borchard & Falko

This matter concerned an application by Ms Borchard (the Mother) against Mr Falko (the Father) in the Federal Circuit Court of Australia, presided over by Judge McNab. The dispute arose from allegations that the Father had withheld the child, X, from the Mother since January 2021, in contravention of existing interim orders. The Mother sought the continuation of these interim orders and a recovery order for the child. The Father, in turn, raised safety concerns regarding the child's well-being while in the Mother's care, supported by various affidavits and medical reports detailing alleged injuries to the child.

The court was required to determine the immediate arrangements for the child's care and to address the serious allegations of child endangerment raised by the Father. Specifically, the court needed to consider the evidence presented by both parties concerning the child's welfare, including the Father's claims of non-accidental injuries and the Mother's explanation for these injuries. The court also had to consider the procedural implications of these allegations, particularly in relation to the Family Law Act 1975 (Cth) and the potential for family violence.

Judge McNab ordered that the further hearing of the Mother's application be adjourned to 5 February 2021 for an interim defended hearing. Crucially, the court directed that a representative from the Department of Health and Human Services, with personal knowledge of the matter, be available to give evidence via Microsoft Teams on that adjourned date. The court also issued specific orders regarding the particulars of obligations and consequences of contravention, as well as noting provisions related to family violence, the prohibition of unrepresented parties cross-examining each other, and the availability of representation through the Commonwealth Family Violence and Cross-Examination of Parties Scheme.