Yagin & Harstad

Case [2024] FedCFamC1F 202

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Yagin & Harstad [2024] FedCFamC1F 202

File number: WOC 15 of 2020
Judgment of: ALDRIDGE J
Date of judgment: 27 March 2024
Catchwords:

FAMILY LAW – CHILDREN – Final parenting orders – Mutual allegations of family violence – Parties’ relationship was toxic and volatile – Not satisfied the father poses a risk of harm to the children – Objective evidence of the mother’s dysregulated behaviour including her behaviour at hearing – General consensus that the mother has a psychological disorder marked by emotional dysregulation – Final hearing was adjourned for two months with consent orders for family therapy and supervised time with the mother – Family therapy did not proceed – Final hearing was adjourned for a further 12 months with consent orders for the mother to undertake behaviour therapy  – Mother did not seek therapy and consequently did not spend time with the children – Children would benefit from meaningful relationship with both parents if that could be safely achieved – Mother poses an unacceptable risk of psychological and emotional harm to the children – Best interests of the children require that they live with the father – Father to have sole parental responsibility for the children.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for further adjournment following 12 month adjournment and additional three month adjournment – Where the mother became self-represented and had been refused legal aid – Appeal against refusal of legal aid was unsuccessful – Mother asserted investigations were ongoing but provided no supporting documents – Proceedings on foot for four years – Further delay not in the best interests of the children – Adjournment refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for removal of the father’s solicitor – Solicitor emailed court documents to an email address obtained from the mother’s workplace’s website – Solicitor communicated unprofessionally with court staff on one occasion – No basis for finding there was any other communication with court staff as suggested by the mother – Inherent jurisdiction of the court over its officers is exceptional in nature – Solicitor’s removal not justified – Application refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Mother objected to three exhibits tendered by the father on the basis they were illegally or improperly obtained – Exhibits are video and audio recordings taken by the father – Consideration of the Surveillance Devices Act 2007 (NSW) and the Evidence Act 1995 (NSW) – Significant purpose of the recordings was evidence gathering – Recordings were not reasonably necessary for the protection of the father’s lawful rights – Recordings bear upon significant issues in the proceedings – Desirability of admitting the recordings outweighed undesirability of admitting them.

Legislation:

Evidence Act 1995 (NSW) s 138

Family Law Act 1975 (Cth) s 60CC

Mental Health Act 2007 (NSW) s 22

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:

Giunta & Giunta (No 2) [2020] FamCA 1045

Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC…

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AGLC
Yagin & Harstad [2024] FedCFamC1F 202
Case
[2024] FedCFamC1F 202
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a complex parenting dispute between Ms Yagin and Mr Harstad. The primary issue was determining the best interests of their two children, X and Y, born in 2016 and 2017 respectively. Both parents had made allegations of family violence against each other, creating a highly contentious environment. The court had to decide on the allocation of parental responsibility and the extent of contact the children should have with each parent.

The court was tasked with evaluating the credibility of the allegations made by both parties, the impact of their relationship on the children, and the capacity of each parent to provide a stable and nurturing environment. The court considered the emotional and psychological state of the mother, who was described as having significant emotional dysregulation issues. This was supported by objective evidence, including her involuntary admission to a hospital under the Mental Health Act 2007 (NSW). Additionally, the court had to weigh the allegations of abuse made by the mother against the father’s denials and counter-allegations of the mother’s erratic and volatile behaviour.

After careful consideration of all the evidence, the court concluded that the mother's emotional dysregulation posed an unacceptable risk of psychological and emotional harm to the children. The court found that the father did not pose a risk of harm to the children and that the children would benefit from a meaningful relationship with both parents, provided it could be safely achieved. The court determined that the best interests of the children required them to live with the father and have no contact with the mother, as the only viable means of protecting them from the mother's harmful behaviour. Consequently, the father was granted sole parental responsibility for the children.

The court also addressed several procedural matters, including the refusal of a further adjournment, the denial of a request to remove the father’s solicitor, and the admissibility of certain exhibits. The court found that further adjournments were not in the children’s best interests and that the father’s solicitor’s conduct did not warrant removal. Regarding the exhibits, the court concluded that the recordings made by the father, though obtained in a manner that may not have been strictly legal, were admissible as their probative value outweighed any prejudicial effect.

The court issued orders discharging all previous parenting orders and granting sole parental responsibility to the father. The father was directed to provide the mother with regular updates about the children and to keep her informed of their residence and school. The court also dismissed any outstanding applications and directed the principal registrar to forward relevant documents to the Law Society of New South Wales.

Orders

Orders of the court

WOC 15 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS YAGIN

Applicant

AND:

MR HARSTAD

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

27 MARCH 2024

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The father shall have sole parental responsibility for the children X born 2016 and Y born 2017.

3. The children live with the father.

4. The father shall send the mother an email once per month with any updates regarding the children including information regarding any medical matters for either child, school information such as awards or achievements and a recent photo of the children.

5. The father shall keep the mother informed of the children’s residence and school/pre‑school attended by either child.

6. Any outstanding application is dismissed.

7. I direct the principal registrar to forward a copy of these reasons and the relevant correspondence between the father’s solicitor and the Court to the Law Society of New South Wales.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

Background

Background to the litigation

Taking all these matters into account, I was satisfied that the desirability of admitting the recordings outweighed the undesirability of admitting them, having regard to the manner in which they were obtained. BACKGROUND A real conundrum in this matter is that the mother has the care of four children from an earlier relationship. Whilst the quality of that care was not explored in evidence in any detail at all, there is no suggestion that the mother is an inadequate or inappropriate carer of them. The particular difficulties that have arisen in this matter, therefore, appear to have arisen from what was, on all accounts, a deeply unpleasant and toxic relationship between the parties. Between 2006 and 2011, the mother was in a relationship with Mr B. They had four children together who are now in the care of the mother. That relationship was marked by family violence. The parties commenced a relationship at some stage in 2013. The father said that in mid-2014 he attended a sports game in which one of Mr B’s children was playing. There the mother got into an argument with Mr B which became so abusive that the game had to be halted. The mother then moved to reside in a women’s refuge, saying she was in fear of Mr B, before moving in mid-2014. The parties commenced living together in late 2014. They separated in late 2019. The mother said that the father was verbally abusive from the outset and, after X was born, became physically abusive as well. He would yell and scream and grab the children by the throat. In addition to continued verbal abuse, the mother’s affidavit (filed 24 June 2022) alleged that the father:·Made the mother shower with the door open so he could watch her. ·Washed her to ensure that she had not cheated on him. ·Urinated on her. ·Made her go to the toilet with the door open making sure the mother did not have her phone with her.·Pushed the mother violently to the ground on more than one occasion.·On one occasion, hit the mother across the thighs and buttocks with a cheeseboard four times. ·Hit the mother on the thighs with a belt on at least two occasions. ·Bit the mother at various times.·Distributed intimate pictures of the mother to others (the father was charged with an offence to that effect and was later acquitted). Furthermore, the mother said that the father was frequently “gaslighting” her. For example, he would tell the mother she had said she was suicidal when she had not (mother’s affidavit filed 24 June 2022, paragraph 29). It was also alleged that the father was extremely financially controlling. The father denies the allegations and asserts that the volatility during the relationship was caused by a combination of drug use, mental instability, and unregulated behaviour on the part of the mother. It is then necessary to weigh the mother’s evidence against the other evidence in the matter. I give particular weight to some specific pieces of objective evidence. In mid-2019, the mother was taken to a hospital emergency department by ambulance and police pursuant to s 22 of the Mental Health Act 2007 (NSW). The police described her behaviour as “highly agitated, irrational and dilusional [sic]” (Exhibit 2, p.8).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The views of the children, as most recently expressed, are that they are scared of the mother, but I am inclined to place little weight on that having regard to Dr P’s observations. The extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues, spend time with and communicate with the children The mother has played no part in the children’s lives for the past two years, but not for want of desire to be involved. The likely effect of any change in the children’s circumstances A change in the children’s circumstances such as moving primary care to the mother would have the deleterious consequences noted by Dr P. Even a move to limited supervised time would expose the children to an unacceptable risk of harm. The practical difficulty and expense of the children spending time with and communicating with either parent Although I have already found that supervised time is not in the best interests of the children, there is further difficulty about them spending time with the mother. She lives some hours’ drive from the father and has the care of the four Mr B children. Contact would require travel of several hours for the mother and the children if it is overnight, which is not very practical but not insurmountable. An additional difficulty is that changeover directly between the parents should be avoided but it would be difficult to avoid given the travel involved because changeovers could not occur before and after school. The capacity of each of the parents At the time the children moved into the primary care of the father, X had significant dental problems with delayed speech which was not appropriate for his age. Predictably, each parent blamed the other. Importantly, those issues have been attended to by the father and the children seem to be doing well in his care. Save for the emotional dysregulation of the mother, both parents have the capacity to adequately care for the children. WHAT ORDERS SHOULD BE MADE? Taking these matters into account, the best interests of the children require that they live with the father and spend no time with the mother, there being no other viable option to protect them from the harmful aspects of her dysregulated behaviour and her view of the father. It follows then that the father should have sole parental responsibility for the children. That position is also supported by the conflict between the parties. Given the view the mother has of the father and her dysregulation, it cannot be envisaged that it is likely that there would be any cooperation or agreement about major decisions concerning the children. Protective orders Both the ICL and the father proposed further orders to the effect that the children spend no time with the mother and that she be restrained from approaching them, the father, their school or their home. Such orders should not be made unless there is a sound evidentiary basis for them. Whilst there is evidence of the mother’s behaviour during the relationship of her inappropriately attending the children’s school, there is no evidence that since separation she has done so or sought to approach the children or father at all.

Ratio Decidendi

Legal Principle Established

The options available to deal with that dysregulation have failed. The only way, therefore, and sadly, to protect the children is for them to spend no time with the mother.Additional considerationsThe views of the children The views of the children, as most recently expressed, are that they are scared of the mother, but I am inclined to place little weight on that having regard to Dr P’s observations. The extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues, spend time with and communicate with the children The mother has played no part in the children’s lives for the past two years, but not for want of desire to be involved. The likely effect of any change in the children’s circumstances A change in the children’s circumstances such as moving primary care to the mother would have the deleterious consequences noted by Dr P. Even a move to limited supervised time would expose the children to an unacceptable risk of harm. The practical difficulty and expense of the children spending time with and communicating with either parent Although I have already found that supervised time is not in the best interests of the children, there is further difficulty about them spending time with the mother. She lives some hours’ drive from the father and has the care of the four Mr B children. Contact would require travel of several hours for the mother and the children if it is overnight, which is not very practical but not insurmountable. An additional difficulty is that changeover directly between the parents should be avoided but it would be difficult to avoid given the travel involved because changeovers could not occur before and after school. The capacity of each of the parents At the time the children moved into the primary care of the father, X had significant dental problems with delayed speech which was not appropriate for his age. Predictably, each parent blamed the other. Importantly, those issues have been attended to by the father and the children seem to be doing well in his care. Save for the emotional dysregulation of the mother, both parents have the capacity to adequately care for the children. WHAT ORDERS SHOULD BE MADE? Taking these matters into account, the best interests of the children require that they live with the father and spend no time with the mother, there being no other viable option to protect them from the harmful aspects of her dysregulated behaviour and her view of the father. It follows then that the father should have sole parental responsibility for the children. That position is also supported by the conflict between the parties. Given the view the mother has of the father and her dysregulation, it cannot be envisaged that it is likely that there would be any cooperation or agreement about major decisions concerning the children. Protective orders Both the ICL and the father proposed further orders to the effect that the children spend no time with the mother and that she be restrained from approaching them, the father, their school or their home.