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CUSTODY TUG OF WAR

YAGIN & HARSTAD

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1149

 

The parents, who make serious allegations against the other about family violence, drugs and alcohol, and mental health, want the Court to make an urgent interim decision about which parent the children should live with, and what time the children should spend with the other parent.

FACTS:

The parties separated in 2019.  Even after separation, the tumultuous relationship between them continued, with the focal point being arguments about Mr. Harstad’s (the Father) time with the two children.   He took the children away from Ms. Yagin (the Mother) and moved them back in with him, where he currently resides.  The Mother commenced proceedings in January 2020.

The primary judge made Interim Orders that the children live with the Mother, and spend time with the Father.  However, the Mother ceased allowing the Father to spend time with the children from about 9 February 2020.  The Interim Hearing in this matter was held on 4 May 2020.

At the Interim Hearing, the Mother proposed that the Children continued to live with her, but spend time with their father each alternative weekend for two hours at the E supervised contact Centre in Town D.  The Father, supported by the Independent Children’s Lawyer, proposed that pending further order he have sole parental responsibility, the children live with him and spend supervised time with their mother.

ISSUE:

Between the parties, with who would the children’s is at least risk of harm?

HELD:

For purposes of the Interim Judgment, the Court has tentatively formed the view that the Orders that it will make are in the children's best interests.[1] Wherever the children are living, there is a risk of harm to them.  The Court decided where the least risk for the children until an expert assessment is obtained, and there can be a more rigorous assessment of the evidence at the Final Hearing.

The Court had concluded that there is less risk for the children in their Father's care and many ways that there would be a higher risk to these children remaining in their Mother's care. The children will be physically and emotionally safe in their Father's care. This is particularly the case if he continues to live with his sister in her family home. The Court had concluded that the risk to the children deriving from their Mother's mental health is greater than if they were cared for by their Father.

The Mother appeared to have had a long history of volatility and mental health issues, which predated her relationship with the Father in this case.

She had a long history of depression, previous traumatic events and abuse, and suicide attempts.  She declined to participate in counseling, which the Court considers her willingness to engage in services to assist her, an issue.  Her aggression, which may or may not be related to her mental health issues, was well documented.   By way of a summary of the evidence, a strong impression was formed that the Mother struggled with her mental health in 2019 and that at times it was acute.  The history of the Mother's mental health raised serious concerns about the risk of the Mother relapsing in the Court's mind. She had the care of six children. Despite the Mother's trenchant criticism of the Father, he was at least present to assist with the care of the children.

In these challenging circumstances, the Father's proposal provided a greater chance of safety for the two younger children, at least pending further investigation. This safety will be enhanced by requiring him to continue to reside with his sister for the time being.  The Father and Independent Children's Lawyer proposed that the children spend time with their Mother for up to 3 hours each week supervised by a contact provider in the Suburb M region of New South Wales at days and times nominated by that provider. As an alternative, the proposed orders contemplate supervision by the maternal grandmother and maternal grandfather. From the Court's perspective, and subject to the supervisors providing an appropriate undertaking, the Court believed this is a suitable alternative.

 

  1. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.[2]

 

[1] Part VII of the Family Law Act 1975 (Cth).

[2] MRR v GR [2010] HCA 4.

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