Falko & Borchard (No 3)

FEDERAL CIRCUIT COURT OF AUSTRALIA
Falko & Borchard (No 3) [2021] FCCA 1500

File number(s): MLC 3445 of 2014

Judgment of: JUDGE MCNAB

Date of judgment: 2 July 2021

Catchwords: FAMILY LAW – parenting – allegations of child abuse – assessment of risk to the child – father subjecting the child to numerous medical examinations – need for the father to engage with a psychiatrist – interim orders made allowing for the father to have supervised time with the child – interim orders made for the father to access further medical assistance.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA.

Cases cited:
Borchard & Falko [2021] FCCA 391

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

Number of paragraphs: 134

Date of last submission/s: 21 May 2021

Date of hearing: 17 –20 May 2021

Place: Melbourne

The Applicant: Appearing in Person

Counsel for the Respondent: Mr A Lovering

Solicitor for the Respondent: Ballarat Lawyers

Counsel for the Independent Children's Lawyer: Mr D Whitchurch

Solicitor for the Independent Children's Lawyer: Heinz Law
ORDERS

MLC 3445 of 2014

BETWEEN:
MR FALKO

Applicant

AND:
MS BORCHARD

Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2014 (“the child”).
3.The Father spend time with the child supervised by the City B Children’s Contact Service (the Contact Centre) at such times as nominated by the Contact Centre AND THAT each party:
(a)contact the Contact Centre within 14 days and request an appointment for assessment for suitability for supervised contact;
(b)attend for assessment at the times and places appointed by the Contact Centre;
(c)attend with any appointments made by the Contact Centre for supervised contact;
(d)ensure that the child attends any appointments made by the Contact Centre for supervised contact;
(e)comply with all reasonable rules of the Contact Centre; and
(f)comply with all reasonable requests or directions of the staff of the Contact Centre.

4.If after the assessment intake procedure the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised contact, the Father spend time with the child at times nominated by the Contact Centre and such time is to occur at the Contact Centre.
5.The Father’s spend time arrangements with the child, pursuant to order 3 herein, is to be supervised by staff nominated by the Manager of the Contact Centre and the Father pay the reasonable fees for the supervision on each occasion of supervision.
6.The Mother deliver the child to, and collect the child from, the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
7.The Father forthwith do all acts and things necessary to attend upon a neuropsychologist as nominated by the Independent Children’s Lawyer for the purpose of the preparation of a report providing an assessment of his neuropsychological state, and that:
(a)the neuropsychologist be requested to address:
(i)the relevant party’s history (including relevant medical history);
(ii)the relevant party’s psychological and emotional health and functioning;
(iii)any relevant diagnosis or description of the relevant party’s personality, presentation or functioning;
(iv)if appropriate, suggested treatment or management, and the likely prognosis;
(v)any incidents of the relevant party’s functioning that may be relevant to their capacity to parent and meet the needs of their children; and
(vi)any relevant matters raised in the parties’ affidavit material.

(b)Victoria Legal Aid be requested to the fund the cost of the same, but in the event Victoria Legal Aid is unable or unwilling to fund the cost of the same, the cost of the report be borne by the Father.

8.the Father attend upon a psychiatrist for the purpose of treatment, including medication, at the expense of the Father, and that psychiatrist be provided a copy of the following:
(a)the Psychiatric Report of Dr N dated 14 July 2020;
(b)a complete transcript of the evidence of Dr N given at the Final Hearing heard on 17-20 May 2021; and
(c)a copy of the orders of this Court.

9.The psychiatrist upon whom the Father is to attend as provided for herein, be at liberty to liaise with Dr N, with Victoria Legal Aid to be requested to the fund the cost of the same, but in the event Victoria Legal Aid is unable or unwilling to fund the cost of the same, the cost be borne by the Father.
10.Prior to the matter returning to Court, the Father attend upon Dr N for the purpose of a further psychiatric assessment and report, with Victoria Legal Aid to be requested to the fund the cost of the same, but in the event Victoria Legal Aid is unable or unwilling to fund the cost of the same, the cost be borne by the Father.
11.The Independent Children’s Lawyer be at liberty to provide to each of the medical/ancillary medical professionals stated in these Orders with copies of all documents filed in these proceedings, and copies of all Orders made in these proceedings.
12.The child remain enrolled at R School in City B, unless otherwise agreed to in writing.
13.The Mother must ensure:
(a)she remains engaged with T Centre;
(b)the family home, being the residence at which the Mother and child live, is kept in a clean and tidy condition;
(c)the child attends all medical appointments and allied health appointments including but not limited to counselling as recommended by the Department of Families, Fairness and Housing;
(d)the child attends school each day and in the event of non-attendance for health reasons provide a medical certificate within 24 hours to the other party, and the Independent Children’s Lawyer;
(e)she advise the other parties immediately in the event 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;
(f)she 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
(g)she keep the Father informed of her current residential address, mobile telephone number and any available email addresses, and advise the Father of any change thereto within 24 hours of such change.

14.The Father be restrained from applying to the Magistrates’ Court of Victoria for these orders to be suspended and must make any application (including urgent applications) in relation to these orders to the Federal Circuit Court of Australia in Melbourne.
15.Both parties and/or their agents are restrained from:
(a)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;
(b)physically disciplining the child;
(c)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 to do so;
(d)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;
(e)passing messages through the child;
(f)unreasonably questioning the child about happenings in the other party’s household; and
(g)involving the child in any form of dispute between the parties or otherwise.

16.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 19 October 2021 at 9.30am for Mention.
17.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 19 April 2021 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
18.The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 14 days before the trial.
19.The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a)the applicant electronically file and serve any further affidavits to be relied upon by the applicant at the Final Hearing not later than 21 days prior to the trial;
(b)the respondent electronically file and serve any further affidavits to be relied upon by the respondent at the Final Hearing not later than 14 days prior to the trial; and
(c)the Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by the independent children’s lawyer at the Final Hearing not later than 7 days prior to the trial,

AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(d)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(e)the party has first obtained leave of the court.

20.Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (s.60cc factors);
(e)a list of contentions relevant to the operation ofs.65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.

21.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
22.Each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing.
23.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
24.Liberty to apply on short notice is granted to the parties.

AND THE COURT NOTES THAT:
A.During the course of giving evidence at the Final Hearing, the Father volunteered that he would give the Mother $100 each week in order to help her keep her house clean.
B.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.
C.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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.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 Falko & Borchard (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION

In this matter, the Applicant Father is 29 years old and works on a casual basis as a Labourer. The Respondent Mother is 26 years old and works on a casual basis for a local food business.
The parties met in 2013 and were together for between four to twelve months, during which the Mother became pregnant. The parties met when the Father was approximately 21 years old and the Mother was 18 years old. There is a dispute as to the length of time the parties were together. The Court’s decision in this matter does not turn on this issue. The parties separated in 2014.
In 2014, the child X was born.
The Father and Mother have both re-partnered since separation.
The Father told the Court, during the course of the Final Hearing, that he has a new partner and spend times with her at her residence in Suburb V. The Father also intermittently lives with his Grandmother and his Mother. The Father also has a child, W, with a former partner who is approximately six years old. The Father’s spend time with that child is limited.
The Mother has a partner of approximately two and a half years, with whom she cohabitates in City B. The Mother’s partner works as a tradesman. The Mother’s partner has two children from a previous relationship who are approximately four and five years old and live with the Mother and the partner about every second weekend. The Mother also has a child, Y, from another previous relationship who is five years old. That child lives with the Mother and spends time with his father each alternate weekend.
BACKGROUND
This matter has a long procedural history before the Court.
An originating application was filed by the Mother on 23 April 2014, and final orders were made on 21 November 2014 for the parties to have equal shared parental responsibility for the child and for the child to spend time with the Father as follows:
(1)every second week from 4.00pm on Thursday to 12.00pm (noon) on Saturday commencing 27 November 2014;
(2)
every second weekend from 4.00pm on Friday to 4.00pm on Sunday commencing

21 November 2014;
(3)from 4.00pm on Christmas Eve 2014 to 3.00pm on Christmas Day 2014; and
(4)with the child’s time with the Father to be suspended from 3.00pm on Christmas Day 2014 to 5.00pm on Boxing Day 2014.
The Father sought to reopen the matter by filing an initiating application seeking final parenting 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.
On 18 November 2020, the matter was listed for Final Hearing on 17 May 2021 with an estimated hearing time of four days.
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. The Father raises safety concerns in relation to the child whilst she is in the care of the Mother. The Father filed an affidavit on 1 February 2021, where he gives evidence that the child was admitted to the City B Hospital by her Mother with a laceration to her left buttock on Thursday 14 January 2021. In his affidavit, the Father alleges that the child was hurt by the Mother and the wound was intentional.
The matter was heard on 2 February 2021, and was adjourned to 5 February 2021 for an Interim Defended Hearing. The purpose of that adjournment was so that a representative of the Department of Health and Human Services (“DHHS”) (now known as the Department of Families, Fairness and Housing) with knowledge of this matter could give evidence in relation to this matter. Brief reasons were delivered ex tempore for why the adjournment was ordered, and those reasons were subsequently published on 4 March 2021: see Borchard & Falko [2021] FCCA 391. These reasons should be read in conjunction with those reasons.
The matter was heard as an Interim Defended Hearing on 5 February 2021, and a representative from the DHHS gave evidence. Oral reasons for judgment were delivered on that day and were later published on 4 March 2021: see Borchard & Falko (No. 2) [2021] FCCA 392. These reasons should be read in conjunction with those reasons. At that hearing, interim orders were relevantly made for:
(1)the child to be recovered to the Mother;
(2)the parties to have equal shared parental responsibility for the child;
(3)the child to live with the Mother;
(4)the child to spend time with the Father:
(a)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), 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);
(b)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), in the event the Father is unable to attain accommodation as set out above;
(c)for half of school holidays;
(d)on various special occasions, including Father’s Day, the child’s birthday and Christmas day.
(e)the child to remain enrolled at R School in City B, unless otherwise agreed to in writing.
(5)each party to:
(a)ensure that the child attends all medical appointments and allied health appointments including but not limited to counselling as recommended by the DHHS;
(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.
(6)both parties and/or their agents to be 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 disciplining 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.
(7)the Mother, without admitting the need to:
(a)continue to engage with Family Services at L Contact Centre;
(b)continue to engage with her psychologist and/or other mental health practitioner;
(c)do all things necessary to enrol in and complete a Circle of Security program, through S Family Services and/or T Centre;
(d)continue to engage with DHHS;
(e)maintain a reasonably clean and tidy home environment for the child.
(8)the Father, without admitting the need to:
(a)continue to engage with DHHS until such time as they close their file and follow all reasonable recommendations of the relevant case workers; and
(b)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.

On 10 May 2021, the Father filed an application in a case seeking that:
(1)the matter be referred to the Family Court of Australia, and that the Final Hearing be adjourned to a later date so that “all medical investigations and reports can be concluded.”;
(2)the Court release all documents to a forensic doctor to conduct an updated report;
(3)the child live with the Father on an interim basis;
(4)the Mother have no unsupervised access to the child;
(5)the parties, and any partners residing at their respective homes, provide hair follicle samples to the Court;
(6)the Mother’s current partner provide a full history of his mental health so that an independent psychiatrist can prepare a psychiatric report; and
(7)a new Independent Children’s Lawyer be appointed.
On 14 May 2021, the Mother filed an application in a case seeking a recovery order for the child, as the Father had not returned the child to her care on 9 May 2021 in accordance with the interim orders made by the Court on 5 February 2021.
The matter came before the Court on 17 May 2021 for Final Hearing, and was heard across the course of four days. The Father was self-represented, and the Mother and the Independent Children’s Lawyer had Counsel appear on their behalf. At the conclusion of the Final Hearing, judgment was reserved. Interim orders were also made, pending the delivery of judgment, for the Father’s spend time, pursuant to the orders made on 5 February 2021, to be varied so that he spend time with the child each Sunday from 4.30pm for up to 30 minutes by video call.
FINAL ORDERS SOUGHT
The Father’s Proposed Orders
By way of written closing submissions provided to the Court on 20 May 2021, the Father seeks final orders as follows:
(1)the child live with the Father and reside with him at the Paternal Grandmother’s house in Suburb Z;
(2)the Mother spend time with the child for three weekends per month;
(3)the Mother under-go reportable psychiatric assessment;
(4)the Father continue to engage with his psychological supports; and
(5)should the child “present with any suspicious injuries in the mother’s care, that the Mother’s time immediately be suspended, and the matter be brought back before the court.”
The Mother’s Proposed Orders
By way of proposed orders provided to the Court on 21 May 2021, the Mother relevantly seeks final orders as follows:
(1)the Mother have sole parental responsibility for the child;
(2)the child live with the Mother;
(3)the Father’s time with the child be reserved;
(4)the Father do all acts and things necessary to attend upon a neuropsychologist, for the purpose of the preparation of an assessment of his neuropsychological state, with the neuropsychologist to address:
(a)the relevant party’s history (including relevant medical history);
(b)the relevant party’s psychological and emotional health and functioning;
(c)any relevant diagnosis or description of the relevant party’s personality, presentation or functioning;
(d)if appropriate, suggested treatment or management, and the likely prognosis;
(e)any incidents of the relevant party’s functioning that may be relevant to their capacity to parent and meet the needs of their children;
(f)any relevant matters raised in the parties’ affidavit material;
(5)the Father bear the cost of the report;
(6)the Father attend upon a psychiatrist for the purpose of treatment, including medication, at the expense of the Father, and that psychiatrist be provided a copy of the following:
(a)the Psychiatric Report of Dr N dated 14 July 2020;
(b)a complete transcript of the evidence of Dr N given at the Final Hearing heard on 17-20 May 2021;
(c)a copy of the orders of this Court;
(7)the psychiatrist upon whom the Father is to attend be at liberty to liaise with Dr N at the expense of the Father.
(8)prior to the matter returning to Court, the Father attend upon Dr N for the purpose of a further psychiatric assessment and report at the expense of the Father.
(9)the Father provide to each of the medical/ancillary medical professionals mentioned in these Orders with copies of the following:
(a)the Psychiatric Report of Dr N dated 14 July 2020;
(b)a complete transcript of the evidence of Dr N given at the Final Hearing heard on 17-20 May 2021;
(c)the Trial Affidavit of the mother filed 14 May 2021;
(d)a copy of the final orders of the Court;
(10)the child remain enrolled at R School in City B, and should the Mother wish to change the child’s school then she shall inform the Father in writing of the school and the reasons why she has changed the child’s school;
(11)the Mother must ensure:
(a)she remains engaged with T Centre;
(b)the family home, being the home at which she and the child reside, is kept in a clean and tidy condition;
(c)the child attends all medical appointments and allied health appointments including but not limited to counselling as recommended by the Department of Families, Fairness and Housing;
(d)the child attends school each day and in the event of non-attendance for health reasons provide a medical certificate within 24 hours to the other party, and the Independent Children’s Lawyer;
(e)she advise the other parties immediately in the event 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;
(f)she 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
(g)she keep the Father informed of her 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.
The Mother also seeks a notation to the orders of the Court that, during the course of the Final Hearing, “the Father volunteered that he would give the Mother $100 each week in order to help her keep her house clean.”
The Independent Children’s Lawyer’s Proposed Orders
By way of proposed orders provided to the Court on 20 May 2021, the Independent Children’s Lawyer relevantly proposes interim orders as follows:
(1)the matter be adjourned part heard on a date not before November 2021;
(2)the Mother have sole parental responsibility for the child;
(3)the child live with the Mother;
(4)the Father spend supervised time with the child at City B Children’s Contact Centre at such times as nominated by the Contact Centre, with the Father to pay for the fees associated with such supervision;
(5)the child remain enrolled at R School in City B, unless otherwise agreed in writing between the parties;
(6)the Father do all acts and things necessary to attend upon a neuropsychologist, as nominated by the Independent Children’s Lawyer, for the purpose of the preparation of an assessment of his neuropsychological state, with the neuropsychologist to address the same considerations as the Mother seeks, and with the Father to bear the cost of the neuropsychological report;
(7)the Father attend upon a psychiatrist for the purpose of treatment, including medication, at the Father’s expense with the psychiatrist upon which the Father is to attend to be at liberty to liaise with Dr N;
(8)prior to the matter returning before the Court, the Father attend upon Dr N for the purpose of a further psychiatric assessment and the preparation of a report at the Father’s expense; and
(9)the Mother ensure that she do all things as ordered by the Court, as sought in the Mother’s proposed orders.
EVIDENCE
The Father’s Evidence
The Father relied upon the following evidence in support of his application:
(1)his own affidavits filed in the proceeding, in particular, affidavits filed on 1 February 2019, 16 August 2019, 16 November 2020, 1 February 2021, 15 April 2021, 10 May 2021, 13 May 2021 and a trial affidavit filed on 14 May 2021;
(2)a written report from the Victorian Forensic Paediatric Medical Service (“VFPMS”) dated 1 February 2021 (Exhibit A1);
(3)s67Z responses from the DHHS dated 14 February 2019 and 31 March 2021;
(4)a s69ZW response from the DHHS dated 5 February 2021;
(5)an affidavit of Dr E, Medical Practitioner, filed on 1 February 2021; and
(6)an affidavit from Dr C, General Practitioner, filed on 17 May 2021 (which exhibited a medical report in relation to the child dated 30 March 2021).
Central to this case is the Father's allegations that the child has been subjected to regular, ongoing and serious abuse by the Mother. The Father's allegations are not frivolous and there is no evidence that they arise from any delusional thinking. There is evidence the child has experienced bruising over a long period of time (the first report of bruising was when the child was four months old). The medical records subpoenaed from the F Hospital (the contents of which are extracted in the Independent Children’s Lawyer’s outline of case document) shows that the child was taken to the F Hospital on 10 July 2014 after being collected by the Father from the Mother’s care. The child had three bruises on her arm. The child was subsequently seen by a doctor at the VFPMS on 11 July 2014 for the purpose of the preparation of a medical report for the Child Protection department of the DHHS. The report is comprehensive but is subject to the limitation that the examiner/reporter had not spoken to the Mother prior to the preparation of the report. The report writer expressed the following opinion:
Limitations to opinion: I have not spoken with Ms Borchard, X’s Mother.
OPINION
X is a 4 month old girl who was referred for a forensic medical assessment because of concerns regarding the presence of bruising to her arm. A bruise results from haemorrhage in the skin or soft tissue follow the rupture of small blood vessels, usually as a result of blunt force trauma. X had bruising to her arm and there is has been no explanation provided as to how X may have sustained the bruising. Infants are rarely accidentally bruised especially when they are non-mobile. No medical cause was found to explain this bruising. X had investigations for clotting function and no abnormality was detected. Bruising in a small child raises the concern of non-accidental injury.
There were no other injuries detected.
There were concerns raised about the living conditions when X is with Ms Borchard and that Ms Borchard was living in a refuge.
Recommendations:
1.I support Victoria Police and Child Protection’s investigation into this matter.
2.I encourage Child Protection to further clarify Ms Borchard’s living situation and consider recommending and placing supports and services in place for Ms Borchard.
3.It is important that X is in a safe and stable home environment and regular monitoring by Child Protection may be necessary to ensure this occurs.
The DHHS report on the matter (extracted in the DHHS response to the Notice of Risk dated 14 February 2019) states as follows:
11/07/2014 – 31/07/2014 – Investigation and Assessment
A report was received when the father collected X from the mother’s care for contact and noticed a cluster of three bruises on X’s outer arm. The father took X to the F Hospital and treating medical practitioners assessed the bruises to be non-accidental – most likely caused by rough or inappropriate force. An appointment was made for X to attend the Victorian Forensic Paediatric Medical Service (VFPMS). Follow up with VFPMS confirmed that whilst the bruises were concerning, they could not be explained. Further medical testing including blood tests and skeletal scans indicated no concerns. SOCIT were notified in line with practice standards.
Follow up occurred with the Salvation Army (AA Centre program) and the MCHN [Maternal and Child Health Care Nurse] who both indicated no concerns for X in the mother’s care. AA Centre indicated the mother had attended several parenting and educational classes to improve her parenting capacity and for future planning.
It was determined that there were existing Family Law Court orders in place and Child Protection assessed there was no requirement for any further statutory intervention. Closure occurred without substantiation.
The report notes the subpoenaed records from the F Hospital indicate that the Father brought the child into the hospital on 15 August 2014 with bruises which were said to not be enough to suggest non-accidental bruising. The child was x-rayed and there was no evidence of any fracture of the right or left tibia bone.
The substance of the Father’s evidence is that the Mother’s parenting and care of the child poses a significant risk to the child, and his concerns are further discussed below.
The Mother’s Evidence
The Mother gave evidence at the Final Hearing and sought to rely primarily on her trial affidavit filed on 14 May 2021.
By that affidavit, the Mother describes a highly tumultuous and fractious relationship with the Father post-separation. The Mother deposes that there was no physically violent behaviour between the parties, but that the Father was emotionally and mentally abusive towards her, in that the Father bullied her and engaged in gaslighting behaviour, in particular, after the child was born. The Mother says that the child has recently told her the Father asks the child what the Mother is doing or where she is going, and has denigrated the Mother to the child.
The Mother also gave evidence in her affidavit of uncooperative and resistant parenting by the Father in several of aspects of the child’s care, including changeover, holiday spend time arrangements, extra-curricular activities, the child’s medical care, and in relation to the child’s school uniform. There was substantial evidence, both in the affidavit material and at the Final Hearing, in relation to the Father’s negative views toward the Mother and her capacity to adequately care for the child, and what the Father sees as neglectful, and indeed, allegedly violent behaviour by the Mother toward the child.
The Mother has conceded both in her written and oral evidence that she struggled as a parent when the child was first born. Various DHHS reports have been critical of the Mother’s prior living arrangements, and her lack of supervision, which may have led to the child obtaining more than normal amounts of bruising. However, the Mother has given evidence that she is fully engaged with a psychologist and a support worker in relation to improving these matters, and the DHHS have since closed the report into those issues. The s69ZW report dated 5 February 2021 gives evidence of a DHHS representative attending the Mother’s residence, giving guidance and assistance to the Mother, and the Mother actively responding to those concerns. The s69ZW report states that the Mother “is able to suitably address the protective concerns with the support of Family Services”. During the course of the hearings on 2 February 2021 and 5 February 2021, the Mother provided photographic evidence of the state of her residence, and the photographs showed that the house was reasonably well organised and was not suggestive of there being a risk of neglect toward the child as a result of the physical home environment: see Borchard & Falko (No. 2) [2021] FCCA 392 at [5] – [6].
The Mother describes a history of over-holding by the Father on six separate occasions, between March 2014 and May 2021, where three of those incidents have occurred since the Father filed his initiating application to reopen this matter in February 2019. I note that in late January 2019, the Father did not return the child to the Mother’s care, pursuant to Court orders, and instead subsequently enrolled the child in a different school on 31 January 2019. The Mother also deposes to an incident on 15 February 2019, where the Father attended her home, snatched the child, and put her in his car and drove away.
In relation to an over holding incident in May 2021, the Mother deposes that the child was delivered to the Father on 7 May 2021, and was expected to be returned on 9 May 2021, pursuant to Court orders made on 5 February 2021. The Mother states that the Father withheld the child, and at the time of making this affidavit, had not returned the child. Evidence was adduced at the Final Hearing that the child was returned to the Mother’s care on 15 May 2021, just prior to the commencement of the Final Hearing. Indeed, the Father gave incongruous evidence at the Final Hearing that the reason he returned the child to the Mother’s care was because of the imminent commencement of the Final Hearing and a belief that the child would be safe in the Mother’s care for that reason.
The Mother concedes that on 4 December 2019, an intervention order was made in the Father’s favour against her, in relation to negative social media posts she had made about the Father. It is said that the Mother consented to the order without admission. The Mother notes that the Father has previously reported her for breaching the order for allegedly smacking the child (which the Mother denies). The matter was before the Magistrates’ Court of Victoria on 3 October 2020, and the child was included as an affected family member in relation to family violence, due to the ongoing reports being made to the DHHS and subsequent review by the VFPMS. Those proceedings were adjourned pending the outcome of the Final Hearing in these proceedings.
The Mother states in her affidavit that in August 2020, she instructed her solicitors to advise the Father that he was over $1,500 in arrears with child support. The Mother deposes that this has not been rectified and the Father, as at the time the Mother’s affidavit was made, was in arrears of $2,351. This is said to have caused the Mother financial hardship. The Mother says that in March 2021 and April 2021, the Father made payments of $10 – $15 per month, and a one off payment of $62.
The Mother also deposes in her affidavit to having knowledge that one of the Father’s former partners (who is the mother of W) has an intervention order against him, to protect the former partner and W. The Mother states in her affidavit that the Father was incarcerated for 127 days in 2018 with a Community Corrections Order, for assaulting another former ex-partner, Ms BB. He was released in mid 2018. The Mother sets out that she learned at the hearings in February 2021, that the Father perpetrated family violence against Ms BB. The Mother deposes that Ms BB had stated that the Father was controlling and verbally abusive toward her and that the Father would end arguments with her by self-harming and would then blame Ms BB for ‘making him do it’.
The Mother gave clear and considered evidence in relation to the care of the child. Her evidence in relation to concerns raised by the Father about the child having an infected mosquito bite was sensible. The Mother said that the child is allergic to mosquito bites and explained how she would treat the bites. She gave evidence as to how the child was burned by a cigarette and that evidence was corroborated by a third party.
DHHS Reports Made In This Matter
There is an extensive history of reports made to the DHHS in respect of the child in this matter. Unfortunately, there is only a patchwork of DHHS reports which summarise the history of the reports made to the DHHS. A s67Z report dated 31 March 2021 indicates that there has been 14 reports made to the DHHS between March 2014 and March 2021 in respect of the child. I have set out a summary of the details of the various reports made to the DHHS below, as provided to the Court.

A s67Z report dated 14 February 2019, provides the following background of historical reports made to DHHS:
(1)on 17 March 2014, the DHHS received a report that the Father did not return the child to the Mother’s care as agreed. Police were contacted and the child was returned to the Mother’s care. It is noted that no concerns were noted by the DHHS in respect of “the mother’s parenting capacity and/or X’s safety, stability and/or development.”;
(2)on 22 April 2014, the DHHS received a report that the child was not returned to the Mother’s care following spend time with the Father. The Mother sought a recovery order from the Court, and the child was subsequently located by police and returned to the Mother’s care. It is noted in the report that there was no concerns for the child whilst in the care of the Mother, and closure of the report was endorsed without harm being substantiated;
(3)on 11 July 2014, as set out above, the DHHS received a report from the Father that the child presented to him for spend time with a cluster of three bruises on her arm. The child was taken to the F Hospital and the bruises were assessed as non-accidental and most likely caused by rough or inappropriate force. VFMPS confirmed that, whilst concerning, the bruises could not be explained, and further testing indicated no additional concerns. Follow up with various services indicated no concerns for the child whilst in the Mother’s care, and the matter was closed with substantiation;
(4)on 1 August 2014, the DHHS received a report from the Father concerning the Mother’s partner’s vehicle, which was said to be not roadworthy. It was also claimed that the Mother lacked parenting skills. It was determined that the matter should be closed at intake without the need for follow up;
(5)on 15 December 2017, the DHHS received a report following a verbal argument between the Father and a former partner, during which the Father stated multiple times that he would kill himself if she ended the relationship. There was a Family Violence Intervention Order (“FVIO”) in place, listing the former partner as the protected person and it was reported that the Father breached the FVIO on multiple occasions, by way of emotional abuse and controlling behaviours. As a result of those breaches, the Father was remanded in custody for several months. It is noted that Child Protection held concerns about the Father’s mental health, and that he was exposing the child to family violence in the course of his relationship with his former partner. Follow up indicated that there were supports and safety planning in place to keep the child safe, as the child’s time with the Father was being supervised by the Paternal Grandmother. The Father was assessed as a ‘Person Responsible for Harm’ on 2 May 2018, given that the child had been present during family violence incidents between the Father and his former partner. Child Protection assessed that there was sufficient services and family supports in place for the matter to be closed at that time;
(6)on 17 December 2018, the DHHS received a report that the child had disclosed to the Paternal Grandmother that the Mother's partner “has been hitting her, smacking her and shaking her”. The DHHS indicates that the information provided that the Mother’s relationship with that partner had since ceased. The matter was closed at intake.
A s69ZW report dated 5 February 2021 and a DHHS Caseplan document dated 22 September 2020 (filed with the Court on 28 January 2021), notes that on 6 August 2020, a report was received in respect of a large number of images taken by the Father over an extended period of time which depict the child with various scratches and bruising. One image, believed to have been taken in January 2020, was said to depict the child with a “deep circular burn to her arm consistent with a cigarette burn”. The Mother reports that that the child had rode past her whilst on a bike and had brushed a cigarette which she was holding.
In respect of that particular photo, it is noted in the report that Dr E assessed the photo and concluded that the Mother’s explanation did not match the injury. Child Protection had previously assessed these images and all reports closed at intake as the child had made no admissions about the injury during the interview. It is alleged by the Father that the child had made disclosures that the Mother hurts her and the Mother had caused the bruising and cigarette burn. The child has told the report writer that the Mother is angry when she hurts her, and the Mother’s partner does not stop the Mother’s harming conduct. However, the s69ZW report indicates that whilst the child told the report writer that the Mother hurts her, she refused to provide any further context or corroborating information as to what occurred. It is noted that this is consistent with the child’s previous behaviour during interviews with Child Protection, in that she is happy to talk to practitioners except about how she has obtained an injury. Child Protection ultimately decided to continue to remain involved until such time as there is sufficient safety and supports in place for the parties and the child.
The s69ZW report provides a summary of some of the reports, as at 5 February 2021, made to DHHS as follows:
A file review notes that there have been 12 previous reports to Child Protection, with the last report closing on 13/3/2020, where similar concerns were raised. Concerns were raised that the father has taken X to see a Doctor and stated that X has 2 bruises on her back, approximately 1 - 2 centimetres in diameter on one side of her back and a bruise around 2 - 4 centimetres in diameter on her left hip. The bruises appear to be recent however X has not made any disclosures in relation to how she got these. Mr Falko has stated that X has given different accounts about what happened including that she fell off her bike.
Of the other 11 previous reports in relation to X and 4 in the past 12 months, 2 have proceeded to investigation and 1 resulted in protective intervention in 2018. Historical concerns have been in relation to Intervention Orders (IVO's), mother giving X non-prescribed melatonin, father not returning X to mother after access, Investigation and Assessment in relation to non-accidental bruising to X, concerns noted that the Ms Borchard and her partner may have caused this bruising which was not substantiated and determined that mother was attentive and responsive to the X. Protective intervention occurred in relation to concerns for Mr Falko’s mental health with X being exposed to her father stating he would harm himself if his partner ended the relationship. It is evident from a review of CRIS in conjunction with current report that X has been exposed to her parents ongoing conflict post separation and it is highly likely that this has impacted on her emotional and behavioral development. It is evident that the parents often fail to prioritize the immediate wellbeing of X and demonstrate a lack of insight into how their behavior impacts on her development.
A report of 11 March 2021 was received by the DHHS pursuant to Court protocols in respect of Notices of Risk. By that report, the Father raised concerns in respect of the child’s welfare whilst in the care of the Mother, due to alleged neglect, the Mother’s mental health and family violence. It was assessed that the information provided in the report did not suggest the child was at a level of risk of harm that would warrant further Child Protection intervention, and the report was closed at the intake phase.
I note that on page 14 of the s69ZW report, the report writer states that:
The relationship between X’s parents Mr Falko and Ms Borchard is highly conflictual, with both parents unable to manage this relationship with the best interest of X at the forefront of their actions. It appears to be very unlikely that these issues will be resolved and as such X’s lived experience of a 50/50 shared care appears to be detrimental to her wellbeing. Her parents do not communicate about her care, her experiences and how they are parenting her. X’s parents report her having difficulty settling into their respective care when she arrives, and this will take days to settle down when she then returns to the other parent. For a child of 6 year of age, this must be a very confusing and unsettling experience to have, as such there is serious concern for the long-term impacts of such a parenting arrangement on X’s psychological and emotional wellbeing. It is respectfully recommended that balance of time spent between each parent is considered in these matters.
The s67Z report dated 31 March 2021, indicates that there has been 14 reports received by the DHHS as at 11 March 2021, although only details of some of those reports have been provided in the DHHS material.
The Father’s Conduct in Respect of Photographing the Child
As set out above, the DHHS Caseplan document dated 22 September 2020 notes that on 6 August 2020, a report was received in respect of a large number of images taken by the Father over an extended period of time which depict the child with various scratches and bruising. In respect of those photographs, there is evidence before the Court that the Father took approximately 200 photographs of the various alleged bruises, scratches and marks on the child (copies of which were provided to the Court by the Independent Children’s Lawyer). In some of those photos the child is depicted in various states of undress/nudity.
In the Mother’s affidavit filed on 13 May 2021, the Mother alleges that the child has informed her that the Father strips her naked and photographs her at the commencement of her spend time with him. The Mother also alleges that the Father and the Maternal Grandmother “question [the child] non-stop about bruising on her body.”
By an email of 9 August 2020, the Father sent those 200 photographs to 14 persons/institutions/agencies, including the Independent Children’s Lawyer, the DHHS, several news agencies (including The Age and The Heard Sun), teachers and a member of parliament.
The Father gave evidence that he believed that there were serious issues when the child was in the Mother’s care and that the various authorities, including the DHHS, were not doing enough to protect the child. On that basis, the Father said that he sent the email (attaching the photos) as he wanted attention to be brought to the issue, so that some form of action would be undertaken to prevent, what he believed, was physical harm being perpetrated on the child by the Mother.
Dr N’s Report
Pursuant to orders of the Court, the Father undertook an independent psychiatric assessment with Dr N, Psychiatrist, on 10 July 2020 for the purpose of the preparation of a report. Dr N’s report was provided to the Court as an annexure to his affidavit filed on 20 August 2020 by the Independent Children’s Lawyer.
In his report, Dr N notes that the Father has a significant psychiatric history. Dr N reports that the Father was first seen by a psychologist when he was 16 years old due to suicidal ideation. He goes on to note that that the Father was admitted to CC Hospital’s psychiatric unit at the ages of 21, 23, 25 and 26 and was admitted to the DD Hospital when he was 27 years old. The Father was diagnosed with Bipolar Affective Disorder when he was 25 years old and was prescribed anti-psychotic medication and anti-depressants. Since the Father was imprisoned in 2018, his medical treatment was stopped and he has remained medication free. The Father was also diagnosed with Borderline Personality Disorder and he commenced treatment, in which he continues to participate.
Dr N states that when the Father was 15 years old, he began binge drinking, which went on until he was 21 years old. It is noted that the Paternal Grandmother took the Father to two Alcoholics Anonymous meetings during this time. Dr N goes on to states that, at the age of 17, the Father began using marijuana. The Father also reported to Dr N that at the ages of 18 or 19, he had tried the illicit substance known as Speed twice and MDMA twice.
Dr N notes that the Father has a history of self-harm, and an extensive history of suicidal thoughts and ideation, which resulted in three or four attempts at suicide by way of overdoses and/or cutting.
Dr N states that the Father was imprisoned in 2018 as a result of 68 charges including assault, threats to kill and a breach of an intervention order. The Father also has previous convictions for a breach of an intervention order and driving without a licence when he was 18 years old.
Dr N diagnosed the Father with a Social and Generalised Anxiety Disorder (“SGAD”), as well as a Borderline Personality Disorder (“BPD”) with Obsessive Compulsive Personality Traits.
In the concluding paragraph of his report , Dr N states that:
It is in my opinion important to note that [the Father] has maintained a constructive relationship in relation to the continued contact with his elder daughter and her mother. There are in my opinion, no concerns in relation to Mr Falko’s capacity to parent.
Dr N gave evidence on the third day of the Final Hearing.
Dr N gave evidence in relation to some of the effects of SGAD and BPD. Dr N gave evidence that generalised anxiety involves pathological worry, and includes a tendency to worry even where there is nothing to worry about, with an associated problem that the affected person is always on edge. Dr N commented that the second symptom of generalised anxiety is a lethargy which is brought on by the exhaustion of having to maintain a high level of anxiety. In essence, because of the constant ‘chatter of anxiety’ the affected person cannot turn their brain off and sleeping at night can be difficult.
In the course of giving evidence, Dr N was made aware of the positive steps that the Father had taken to engage with psychologists, Mr EE (who assists the Father with Dialectical Behavioural Therapy) and Mr FF (who was treating the Father in relation to his anxiety). Dr N was given the opportunity to read the clinical notes of those practitioners, which had been appropriately extracted from the subpoenaed documents by the Independent Children’s Lawyer and distilled in the case summary document filed on 13 May 2021.
I will not canvass all of Dr N's oral evidence, but to say that he spoke clearly about the challenges facing the Father and his comments about the Father’s conditions were not generalised and were directed to his knowledge of the Father. Dr N strongly recommend that the Father consult with a psychiatrist for the purpose of seeing whether there may be medication which may assist the Father in dealing with his anxiety: see transcript, page 6, line 34 – page 7, line 2; page 9, line 39 – 47. Dr N also suggested that the Father access ‘acceptance and commitment therapy’ and explained his reasons for that suggestion: see transcript, page 7, line 19 – 23.
Dr N expressed the view that the Father’s behaviour in taking a large number of photographs of the child, and making them available to a wide range of people, including the media, may be an expression of compulsive personality traits. In response to questions from the Father regarding the sending of the photos of the child to various people, the "constant documenting and reporting” of the child’s alleged injuries and whether that was expression of a compulsive disorder or whether it was delusional thinking, Dr N stated:
I’m not for a moment suggesting it’s delusional, and I’m not wanting to minimise your concern for your daughter. I think, as a doctor, my concern is I’m told that she has been taken to a number of consultations, which in itself can be distressing and stressful for the child, and clearly you’ve sought the opinion of a range of people who have not had the same degree of concern that you’ve had, but because of your personality you just keep – you’re like a dog with a bone, you just keep going, and are not willing to accept an opinion that doesn’t fit with your opinion at that time. As I said, I understand it’s driven by your concern, but I am concerned that in the process it hasn’t been comfortable and pleasant for your daughter as you’ve tried to make your case.
(See transcript, page 11, line 39 – page 12, line 2)
Dr N did suggest that it was appropriate for the Father to spend time with the child in a supervised setting. Dr N was asked about the opinion that he expressed in his report, and he went on to state that:
At that time, as I said, [the Father] does have a history of having a successful relationship with a previous partner and a previous child and on that basis I assumed he has the capacity to have a similar relationship with X. On the basis of what you’re putting to me now in terms of these intrusive, repetitive photographs, then absolutely not. He has to establish a pattern of behaviour with X that is not abusive.
(See Transcript, page 17, line 1 – 6)
The difficulty faced by Dr N is that he had not been provided with the previous judgements of the Court in this matter delivered on 2 February 2021 and 5 February 2021, which outlined the Father's interactions with SOCIT and VFMPS. Dr N was also not given a full brief of the written evidence prior to giving evidence at the Final Hearing, including the reports from the VFMPS.
Dr N did recommend that the Father continue to see his daughter and that if that did not happen, it would be very difficult to monitor the Father’s progress in the absence of him seeing the child. In the course of giving evidence, Dr N put his position in the following terms:
If you separate [the Father] from his daughter and I start treating him I have no idea whether that’s going to have any impact on the exchanges that occur between Mr Falko and his daughter. Under supervision there would be an opportunity for a third party to observe whether a more normal, healthier exchange can take place, or whether Mr Falko continues to use those opportunities to garner information about his former partner and his former partner’s behaviour. But if he’s not seeing the child then I have no idea what the impact of treatment is going to be in terms of that relationship.
(See Transcript, page 17, line 7 – 14)
I note that, as he had not been provided with the previous judgments of the Court or a full brief of the evidence, Dr N was proceeding on the basis that there was no evidence that he, or indeed the Court, has been given to support the Father's concerns about the safety of the child in the care of the Mother. Once Dr N became aware that there were serious concerns being expressed about how the child has been cared for by the Mother, he gave evidence as follows:
[…] there are serious concerns being expressed about how the child is being cared for. And the court needs to be satisfied that the child is in a safe place…There are equally concerns about how Mr Falko has conducted this matter and placed the child in a situation of emotional and to some extent physical abuse, being constantly examined by doctors and the father clearly has concerns about his daughter. And cares for his daughter…my hope would be that some sort of relationship could be retained. If the court’s primary concern is how Mr Falko is managing his own concerns about his daughter, then someone like me as a psychiatrist is not going to be able to monitor change unless there’s contact. So I could treat him, medicate him. In a year’s time you could give him contact and the whole thing could start all over again, in a context where he has less of an emotional relationship with his daughter because there has been an absence of relationship. But whether a limited period of supervision would be time enough to satisfy the court that Mr Falko really does understand his behaviour differently and is prepared to behave differently, has to be your decision.
(see Transcript, page 24, line 16 – 30)
Dr E’s Report

By way of an affidavit filed on 1 February 2021, Dr E provided to the Court, what is in some respects, what appeared to be an independent expert witness report.
Dr E states in the report that he has been assisting the Father with the general medical care of the child since 16 November 2018. He states that he conducted a ‘prolonged consultation’ with the child, including a comprehensive history and performing a general physical examination.
Dr E reports that he was told that the child had symptoms and signs of what he interpreted as anxiety.
Dr E states that in early 2020, he was contacted by the Father and sent photographs of ulcerated skin, which was reported to him to be an injury sustained by the child. He was informed by the Father that the ulcer was due to a cigarette burn and that the Mother had allegedly described the child as brushing past a lit cigarette she was holding and accidentally received a burn. He describes a picture of the alleged as injury that was shown to him as a “circular ulcer”. Dr E deposes at [26] – [27] of his affidavit that it was his opinion that if the ulcer was caused by a burn from a cigarette, it was far more likely that it was a non-accidental injury, as “the cigarette would need to have been applied to the skin at a perpendicular angle and for longer than a fleeting moment”.
Dr E states that he recommended an immediate report to Child Protection, and was later informed (presumably by the Father) that a forensic expert from the F Hospital had produced an expert opinion indicating that the injury was a non-accidental injury and that Child Protection had been involved.
Dr E goes on to state that on 17 January 2021 he was sent photographs by the Father of what appeared to be a laceration on a child’s buttock. He was told that the child had attended City B Hospital’s emergency department on 14 January 2021 in relation to the injury. Dr E was told by the Father that the laceration had been described by the Mother as being caused by the child sitting on a Barbie doll in a bath. Dr E states that the Father provided a copy of the City B Hospital medical notes to him in relation to the child’s attendance for the injury.
Dr E states at [35] of his affidavit that it is his opinion that the alleged cause of the injury, being the child sitting on a barbie doll in the bath, is not likely to have caused the injury. Dr E deposes that he has been told that the child described to Victoria Police that the cause of the injury was different to that provided by the Mother, but provides no further details in his affidavit as to what he was told the child had told Victoria Police.
Dr E provides a summary of his opinion at [41] – [46] as follows:
41. I am concerned about the escalating injures (sic) for which X is now requiring medical treatment.
42. I am concerned that the explanations proffered by the mother are unlikely to have caused injuries for which I have been provided with photos and medical records from City B Hospital.
43. I am concerned that Child Protective Services are allegedly involved in monitoring the care and well-being of X who first presented to the F Hospital for forensic assessment at 4 months of age and is still presenting with concerning injuries. [Perhaps the Court can request a report detailing the involvement of Child Protective Services.]
44. I am concerned that X first presented to me with anxiety, and now over two years later I have been informed that X has named a perpetrator to Victoria Police members from City B SOCIT Unit. [Perhaps the Court can request a report from City B SOCIT Unit.]
45. I am concerned that the Court be aware of all relevant information in this case
46. It is my opinion that not only is X’s physical well-being at stake here, but also her long-term mental well-being.
Dr E also gave evidence at the Final Hearing.
I do not accept the opinion evidence of Dr E. It is not established that he is an expert in the field of forensic medicine or injury interpretation, whether by experience or qualification. He acknowledged this. Dr E’s affidavit gave the impression that he was providing independent and expert evidence to the Court in respect of the child’s medical history and the two injuries.
However, during the course of giving evidence at the Final Hearing, Dr E stated that he had a previous connection to the Father, in that he has known the Paternal Grandmother for approximately seven years. Dr E gave evidence that he first met the Paternal Grandmother when she was referred to him as a victim of an assault, and he prepared a report in respect of his examination of her. Dr E also gave evidence that he considers the Paternal Grandmother, who runs a business supervising children spending time with their parents, to be a ‘professional associate’ (or that he has a professional association with her) on the basis that that he and the Paternal Grandmother work with, and receive work from, a third party, Ms GG, who is a solicitor who works in family law, but that they do not work directly with each other. Dr E, in response to questioning by Counsel for the Independent Children’s Lawyer, said that he, the Paternal Grandmother and other professional associates would get together for a social meal once or twice a year (at most), on an irregular and infrequent basis.
Dr E also deposed to the fact that he had not recently read the Expert Witness Code of Conduct or the Federal Court of Australia Expert Evidence Practice Note. Indeed, in the course of discussions between the Bench and Dr E, Dr E gave evidence that he was not aware that he was required to include an acknowledgment in his affidavit that he had read, understood and complied with the Practice Note and that he agreed to be bound by it. Whilst being cross examined by Counsel for the Independent Children’s Lawyer, Dr E stated that he had previously provided reports in accordance with the relevant regulations and that the reason such an acknowledgment had not been included in his affidavit was “simply an omission”.
I receive the evidence of Dr E as to what he saw or was told, but otherwise do not consider his testimony to be of independent expert opinion evidence.
Dr C’s Report
By way of an affidavit filed on 17 May 2021 by the Independent Children’s Lawyer, Dr C, General Practitioner, provided to the Court a report which sets out the child’s history of consultations at D Medical Centre.
By that report, Dr C notes that the child was seen by various doctors (or a doctor was contacted by phone or email) approximately 11 times between 2 February 2020 and 25 September 2020 at the Centre in relation to alleged injuries sustained by the child. The report indicates that the child was brought to the centre by the Father, his then partner or that partner’s Mother. The Mother in these proceedings brought the child in to the Centre on one occasion.
In summary, most of the consultations related to the child presenting with various bruises of varying size, age and colouring. The Centre also gave consultations in respect of:
(1)the cigarette burn incident on 2 February 2020, and the injury was described in the report as a “small inflamed spot which was superficial and healing with no signs of infection”. The doctor who saw the child noted that the child did not answer any questions asked by the doctor about the injury;
(2)the child presenting on 14 August 2020 with scratch marks on her chest, abdomen and both groins;
(3)the Father contacting the Centre over the phone on 17 August 2020, alleging that the child had told him that the Mother hit the child on the head with a metal spoon and then iced it. The Father said he was concerned about the child sustaining a brain injury as a result, and he was told that it was highly unlikely the child had received a brain injury;
(4)a photo sent by the Father to the Centre on 28 August 2020 of a wound on the child’s knee from a fall, for which the child had just completed a round of antibiotics. The doctor who examined the photo described the injury as an “open wound of about 2-3 cm deep on knee cap with swollen edges” and told the Father to bring the child to the emergency department to exclude the possibility of septic arthritis; and
(5)the Barbie doll incident on 25 January 2021, whereby the Father sent an email to Dr C attaching a photo of the alleged injury and told Dr C that he had taken the child to see a ‘forensic doctor’ who said that the injury could not have been caused by a Barbie doll. Dr C told the Father that he could not comment on the injury, as the child was not seen at the Centre.
Dr C also notes that on 29 July 2020 he referred the child to a psychologist for counselling in respect of “family issues”.
The report indicates that the child was present at the Centre on 2 February 2020, 28 February 2020, 14 March 2020, 18 July 2020, 20 July 2020, 22 July 2020, 31 July 2020, 14 August 2020, 24 August 2020, 11 September 2020 and 25 September 2020. The Father also contacted the Centre in relation to alleged injuries sustained by the child on 18 July 2020, 17 August 2020, 28 August 2020 and 25 January 2021.
The report indicates that the child was present at the Centre with the Mother on 24 August 2020.
In relation to those consultations, it is noted in the report that the relevant consulting doctor contacted Child Protection/the DHHS on approximately three occasions, and that Child Protection contacted the Centre on two occasions in respect of their consultations with the child.
The account of the Centre’s records makes plain the intensive attention that the child has received as a result of the concerns raised by the Father.
The Family Report
A family report, prepared by Family Consultant HH (“the Family Consultant”), was provided to the Court on 25 October 2020.
At [42] of the family report, the Family Consultant states that the lack of trust and respect, and knowing and understanding between the parties appear to be the most central factors to the dispute in this matter, as it has led to a sustained unwillingness by the parties to develop a cooperative parenting style, including civil and effective communication in respect the child. The Family Consultant indicates that the nature of the relationship, as at the time the family report was prepared, is exemplified as follows:
42. […] it appears that there have been repeated standoffs, accusations, misrepresentations of the facts about the dispute, together with some obvious acts of impulsive emotionally fuelled immature and self-serving behaviour on both sides, and it would further appear that some of the child's former unsettled and acting out behaviour may have in some way been related to the parties' seeming ongoing immature actions towards one another.
However, the Family Consultant goes on to state at [43] of the family report that neither party has questioned the other’s love and commitment to the child, but instead the dispute is sustained due to the different attitudes of the parties to parenting responsibilities and/or care arrangements, with each party blaming the other for the ongoing conflict.
The Family Consultant states at [48] – [49] of the family report that:
48. In reviewing this matter, especially the welfare concerns for the child and the mother's related parenting capacity, as possibly indicated by the health professional records during the years 2014 to 2019, as well as the mother's partial admissions, it appears reasonable to surmise that there have been times when the mother's care of the child has not been as good as it could or should have been, but there appears no evidence to substantiate the father's claims of sufficient negligence in the mother's childcare to justify the father's wish for the child to now be placed in his primary care. The writer makes such comment particularly within the context of the seeming repeated investigations made by DHHS, presumably with such being in response to the father's complaints to them, regarding the mother's care of the parties' child and her other child, and then, significantly, that agency determining to take no further action.
49. Nevertheless, given some of the mother's partial admissions, her apparent historical dysfunctional background, and her related seeming lack of appropriate social or parent modelling, together with her admissions of having had several relationships in such a short time span, as well as her partial admissions about some aspects of her poor care of the child in the past, there may be more credibility to the father's claim than the current investigative outcomes would appear to signify. Indeed, the writer has worked long enough within the child protection area to know that he doesn't always necessarily agree with the actions or findings of DHHS, but in this instance the available information appears insufficient to justify the father's claims of the mother's inadequate or negligent parenting.
At [59] of the family report, the Family Consultant provided the following recommendations:
A. The parties have equal shared parental responsibility for the child.
B. The current week about shared care parenting arrangements should remain in force.
C. The parties urgently need extensive relationships and parent counselling, with a strong emphasis being placed upon improving communication techniques between the parties.
D. An introductory part of such counselling should include separate personal counselling to gain greater understanding of when, how, or why each party's emotions may have negatively impacted upon their former actions towards one another.
E. Whenever possible, at the discretion of the counsellor, the father's partner Ms BB should also be included in the counselling processes.
F. The child should undertake some type of play or drama therapy designed to validate herself, reduce her anxieties, and to give her greater self-belief, coping and resilience skills. To demonstrate the validity and importance of such counselling to the child by the parties, and to show her that they equally share the same concerns for her, it is recommended that, at the discretion of the counsellor or therapist, whenever possible both parties together participate in this process.
In giving oral evidence before the Court, the Family Consultant was made aware of the Father’s conduct in sending the large tranche of photographs of the child to various recipients, including members of the media, in August 2020. The Family Consultant expressed the view that given the escalation in the Father's conduct and the lack of any capacity for the parties to co-parent, it would be appropriate for the Father to, in effect, have a break from spending time with the child and that that the subsequent resumption of spend time between the child and the Father be supervised.
The Family Consultant became increasingly dispassionate in the course of giving evidence, which resulted in him extemporising in relation to mental health conditions that may or may not be suffered by the Father. At one point, the Family Consultant offered the opinion that the Father's conduct in sending emails (attaching the photographs) and acting on his concerns was the result of delusional thinking. This evidence did not appear to be grounded in any material before the Court and is apt to distract the Father from the work that he has to do in relation to dealing with his BPD and associated anxiety. The Family Consultant’s dispassionate presentation also undermines his role as an independent consultant.
Events Following the Hearing on 5 February 2021
As set out above, the Father filed an application in a case on 10 May 2021 and the Mother subsequently filed an application in a case on 14 May 2021.
In respect of the Father’s application, the Father alleges in an affidavit filed on 10 May 2021, that at a scheduled changeover on 9 May 2021, the child presented wearing inappropriate clothing for the weather and had no school clothes, reader or school bag. The Father goes on to allege that the child presented with ‘injuries’ (although no further details as to the nature of those injuries is provided in the Father’s affidavit) and that he took the child to the F Hospital to be assessed. The Father deposes that the child was assessed by medical professionals, and during the assessment, the child made a disclosure that the Mother had inflicted the injuries. It is said that the treating medical professional spoke to VFMPS and made a report to the DHHS in respect of the assessment of the child and the child’s disclosure.
In respect of the Mother’s application, the Father failed to return the child to the Mother’s care on 9 May 2021, pursuant to the interim orders made on 5 February 2021. The Father returned the child to the Mother on 15 May 2021, just prior to the commencement of the Final Hearing.
The circumstances of the Father’s return of the child on 15 May 2021 was the subject of substantial examination during the course of the Final Hearing. The Father gave evidence that, in effect, when he returned the child to the Mother’s home, he remained in the car once the child got out, watched her go to the house and ultimately waited until he saw her in the front window of the home before leaving. The Father’s evidence in respect of not delivering the child to the front door of the Mother’s home is highly incongruous behaviour given his significant state of concern and vigilance in relation to the child. No reason was provided as to why he would not deliver the child to the door.
CONSIDERATION
For the reasons set out below, the proposal of the Independent Children’s Lawyer is in the best interests of the child. Whilst it is plainly desirable to make final orders where possible so that a matter can be resolved, the weight of the evidence in this matter supports orders being made on an interim basis.
This case is an example of one of the difficulties in dealing with family law parenting cases because the subject of the matters before the Court are not static.
From the Father's perspective things have moved on considerably since the family report was prepared and he was seen by Dr N. The relationship that he was in at that time has now concluded and he is the subject of an intervention order from his former partner. The positive relationships that arose from that relationship have now ended, in particular, the child's relationship with the mother of his former partner, which featured as a positive part of the child's life. The Father has formed a new relationship with a woman and is spending time with her.
Further, the Father's concerns regarding the child's health have escalated considerably, notwithstanding that he is aware of the protective measures that have been taken by the DHHS and the Mother's active engagement with those (and other) services. The Father has engaged actively and appropriately with mental health professionals who are continuing to assist him. The Court was given the impression that, after he had heard the evidence of Dr N, the Father seemed to make a genuine expression of a desire to obtain assistance to deal with his mental health issues.
In my view, the Father's continued assessment of the child every time she spends time with him for the purposes of having her medically examined (largely for the purposes of these proceedings rather than because the child is complaining of being harmed or abused in the Mother’s home), are not in the child's best interests. It is hoped that the time between the hearing on 20 May 2021 and the delivery this judgement has served as an interregnum (or as a ‘circuit breaker’, as that expression was used by the Family Consultant) and that the Father may now be in a position to engage with a psychiatrist for advice in relation to his mental health issues.
In making these orders the Court is proceeding on the basis that there is no evidence that the Father is delusional. I agree with the assessment of Dr N that the Father's anxiety is now at a point where it is having a detrimental effect on the child and is also undermining the Mother's capacity to care for the child. I agree with Dr N’s assessment that the Father should engage with a psychiatrist to obtain ongoing assistance. I also find that the Court will be assisted by a neuropsychological report of the Father being prepared prior to the Final Hearing, and orders have been made accordingly.

It must be remembered that the Mother became pregnant with the child when she was barely 18 years old, and was in the first weeks of a university course. Her relationship with the Father ended around the time she became pregnant. It appears from the narrative presented by Dr N that the Father was at a low point in terms of his mental health and had out of control behaviour at or around that time. It does not appear that the Mother had any substantial family supports and her relationships with the Father and the Father's family have been problematic and, from the Mother’s perspective, they have been largely unsupportive of her.
The Mother acknowledges that, for a period of time a number of years ago, she was not adequately caring for the child. I view this evidence in the context that she was a young woman with two small children operating without any substantial family support and on a very low income. During the course of giving evidence at the Final Hearing the Mother gave the impression that she recognised the concerns expressed by the Court during the hearings conducted in February 2021 and the concerns raised by the Father.
In relation to the Mother, I am comforted by the fact that she has engaged with psychological supports and has the assistance of a case worker from L Family Centre, Ms JJ, who gave evidence at the Final Hearing and provide a report to the Court dated 9 May 2021: see Exhibit ICL-2. Ms JJ’s report notes that that the L Family Centre have supported the Mother since 8 December 2020 and that Ms JJ commenced supporting the Mother on 25 March 2021. The report notes that:
Over these few occasions I have observed the house to be at an appropriate level of cleanliness…In my most recent visits I have observed a visible difference in cleanliness, the house was presented tidy, clean and hygienic.
Over the time I have support (sic) Ms Borchard I have observed Ms Borchard to be cooperative, accountable and transparent in her interactions with myself.
I have observed Y and X to play at a healthy and appropriate level for their age and stage of development: testing boundaries but also seeking support and attachment from Ms Borchard when needed.
In my interactions with Ms Borchard she has shown to be open to support and happy to engage in conversations around care and safety around children. Ms Borchard has demonstrated appropriate parenting through engagement in the parenting skills program Circle of Security, continuing engagement with myself as well as in seeking psychological support for X and ensuring the children are given a stable home environment.
The Mother presented in the witness box as a reasonably mature person who was exhausted by having to deal with the Father and the effect of these proceedings.
Equal Shared Parental Responsibility
Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This is true when the Court is making interim orders, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
However, s61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child, or the child's parents, for the parties to have equal shared parental responsibility for the child.
In my view, the Mother should have sole parental responsibility for the child in the interim period. The child is living with the Mother and the evidence shows that she is actively engaging with her various supports and has taken steps to have the child engage with a child psychologist. The Mother is known at the local school and there is no evidence to suggest that child is not attending school or that the Mother is not capable of making decisions in relation to the child’s education. In my view, given the high level of conflict between the parties, it is in the best interests of the child for the Mother have sole parental responsibility in this interim period, as that may reduce some of the tension between the parties.
Statutory Considerations
By operation of s60CA of the Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
In my view the orders proposed by the Mother for the Father's time to be reserved are not appropriate as they do not adequately promote the benefit of the child having a meaningful relationship with the Father. The orders proposed by the Independent Children's Lawyer provide for the Father to spend supervised time with the child in the interim period and promote the child having a meaningful relationship with both the Mother and the Father.
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is concerned that the child has been subjected to ongoing and very regular assessments, including having photographs taken of her and spending long periods of time in the emergency departments of hospitals. This presents as a risk to the child and would appear to be more of an expression of the Father's significant anxiety rather than addressing medical emergencies or reports from the child that she is being hurt by the Mother or whilst in the care of the Mother. I agree with the assessment made by Dr N that there should be a period of supervised time which allows for the relationship between the Father and child to continue, but protects the child from the risk of abuse.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3) of the Act, to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
At [35] of the family report, the Family Consultant noted that:
35. Both parties indicated that as the child had been interviewed more than once in the past month by DHHS she had become quite defensive and now had become reluctant about being interviewed again so soon, so because she is still young, and in deference to her and the parties’ wishes she was not interviewed.
In any case, given the child’s young age, significant weight would not be placed on the child's views.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The child is living in a stable family environment with the Mother, the Mother's partner and her half-brother. Unfortunately, the child is experiencing the effects of the fractured relationships between the Father and his partners and family. In my view, the child needs some time away from the intense scrutiny that she is subject to whilst in the care of the Father.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
Both parents have sought to participate in making major long-term decisions about the child. However, the Father, by making unilateral decisions to withhold the child and to change her school, has not acted in the best interests of the child.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father has not fulfilled his obligations to make child support payments as assessed. When a question arose about this in the course of the Final Hearing, in the context of the Father raising concerns in relation to the Mother's capacity to maintain an appropriately clean house, the Father was asked whether he might make some contribution towards the cost of maintaining the house and he volunteered that he that would contribute $100 per week in order to do that. On that basis, the Court will include a notation to that effect.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Father has raised issues in relation the Mother's capacity to care for the child, pointing to what was alleged to be quite squalid conditions of the Mother’s house a number of years ago. Those issues seem to have settled considerably given that the Mother is now slightly older, is in a settled relationship and has active and positive engagement with various supports. There are no reports from the child’s school regarding the presentation of the child and no particular issues raised about her behaviour.
The Father seems to be leading a somewhat transient existence between his house, the Paternal Grandmother's house and his new girlfriend’s house. That, combined with his mental health condition, is affecting his capacity to care for, and maintain, the child.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
Given that the Mother lives in City B and the Father resides in Melbourne and spends some time with his new partner in Suburb V, there are some practical difficulties with the child spending time with both parties. However, in the scheme of things, those issues are not significant.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
This is set out above.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Both parties were reasonably young when the child was born and both have backgrounds that could not be described as straight forward. The details of those matters have been set out above, and in the previous judgments of this Court in this matter.
s 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in this matter.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
As set out at length above, the parental conflict between the parties significantly effects their approach to the responsibilities of parenthood, in particular, to cooperative parenting.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
Family violence is not a feature of this case.
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
This Court made orders on 5 February 2021 restraining the Father from making any applications to the Magistrates’ Court of Victoria (by way of intervention orders) to suspend this Court’s orders.
The Mother has been the subject of an intervention order taken out by the Father in the past in relation to comments she made on social media in respect of the Father. As set out above, the Father has previously reported the Mother for breaching the intervention order, by allegedly smacking the child (which the Mother denies). The matter was before the Magistrates’ Court of Victoria on 3 October 2020, and the child was included as an affected family member in relation to family violence. Those proceedings were adjourned pending the outcome of the Final Hearing in these proceedings.
Further, the Mother also deposes in her affidavit to having knowledge that one the Father’s former partners (who is the mother of W) has an FVIO against him, to protect the former partner and W.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
As orders are being made on an interim basis, there will be, by necessity, a further hearing unless the matter can be resolved by consent. The need for a further hearing is necessitated because of the need for the Father to engage in further therapeutic treatment with a psychiatrist and to receive advice from a psychiatrist in relation to the best means of dealing with his mental health issues.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
The other facts and circumstances that are relevant to this decision are set out above.
CONCLUSION
For these reason, I will make orders as proposed by the Independent Children’s Lawyer, subject to modification.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.
Associate:
Dated: 2 July 2021

[2021] FCCA 1500

2 July 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Expert Evidence

Remedies

Costs

File number(s):	MLC 3445 of 2014
Judgment of:	JUDGE MCNAB
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – parenting – allegations of child abuse – assessment of risk to the child – father subjecting the child to numerous medical examinations – need for the father to engage with a psychiatrist – interim orders made allowing for the father to have supervised time with the child – interim orders made for the father to access further medical assistance.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA.
Cases cited:	Borchard & Falko [2021] FCCA 391 Borchard & Falko (No 2) [2021] FCCA 392
Number of paragraphs:	134
Date of last submission/s:	21 May 2021
Date of hearing:	17 –20 May 2021
Place:	Melbourne
The Applicant:	Appearing in Person
Counsel for the Respondent:	Mr A Lovering
Solicitor for the Respondent:	Ballarat Lawyers
Counsel for the Independent Children's Lawyer:	Mr D Whitchurch
Solicitor for the Independent Children's Lawyer:	Heinz Law

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	2 JULY 2021