Hasegawa & Hasegawa

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hasegawa & Hasegawa [2024] FedCFamC1F 866

File number(s): SYC 1754 of 2022
Judgment of: BEHRENS J
Date of judgment: 17 December 2024
Catchwords: FAMILY LAW – PARENTING – Where the children have only spent time with the Father during the day and on a supervised basis for over four years – Where the Father conceded to perpetrating family violence against and in the presence of the Mother and the children – Where a two year final ADVO had been in place protecting the Mother and children from the Father but has since expired – Where the Father breached the ADVO on two occasions but no conviction was recorded – Where a breach of a protection order, irrespective of its nature and objectively “innocent” appearance, is a breach and should be considered as such to facilitate the victim’s safety and recovery of autonomy – Where the Father has attended men’s behaviour courses and is undertaking counselling – Where the Mother remains fearful of the Father – Where family violence relevant to parenting capacity – Where family violence is an important context for understanding evidence about the behaviour of those it is used against – Where the single expert recommended that limited weight be placed on the children’s views because they are conscious of the Mother’s views about the Father – Where it is of benefit for the children to have a relationship with their Father and extended paternal family – Where orders made by consent for the Mother to have sole parental responsibility in respect of all long-term decisions for the children – Where orders made by consent for the Mother to notify the Father of significant long-term decisions – Where orders made by consent preventing the Mother from changing the children’s surname – Where orders made by consent for the children to live with the Mother – Where orders made by consent restraining the parents from engaging in certain conduct pursuant to s 68B of the Family Law Act 1975 (Cth) – Where orders made by consent for each parent and the children to undertake therapy and such orders are not linked to final parenting orders – Where orders made providing for the children to spend time with the Father on a graduating basis –Where orders made for parents’ attendance at school and other events and for the Father to nominate in writing to the Mother at the beginning of each school term one event that he wishes to attend outside of the time provided by the final orders – Where orders made for changeover – Where orders made for international travel and passports – Where orders made for costs of Independent Children’s Lawyer
Legislation:

Convention of the Civil Aspects of the International Child Abduction

Family Law Act 1975 (Cth) ss 10C(2), 60CC, 60CG, 62B, 65(D), 67ZC, 68B,

Family Law Amendment Act 2023 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases cited:

Jacks & Samson (2008) FLC 93-387; [2008]…

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Details
Case
[2024] FedCFamC1F 866
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) considered a parenting dispute between Ms Hasegawa and Mr Hasegawa concerning their children, X and Y. The key issues before the court involved determining the appropriate arrangements for the children's time with each parent, ensuring their safety, and addressing the impact of family violence on the children’s welfare. The court had to decide on the suitability of the children spending more time with their father, Mr Hasegawa, given his past history of family violence and the mother's ongoing fear and anxiety about his conduct.

The court concluded that despite Mr Hasegawa's efforts to attend men's behaviour courses and counselling, and his general progress, Ms Hasegawa remained genuinely fearful for her and the children's safety. The court found her fear to be a significant factor in determining the children's best interests. The judge emphasised that breaches of protection orders, even if seemingly innocent, should be considered in light of the need for the victim's safety and autonomy. The court also acknowledged the importance of the children maintaining a relationship with their father and his extended family, but balanced this with the need to protect the children from potential harm.

The court ordered that the children would primarily live with their mother, with specific arrangements for the father to have supervised and gradually increasing time with the children. The orders included provisions for communication between the parents, attendance at school events, and specific rules to ensure the children's safety and well-being. Both parents were required to undertake individual counselling, and the children were to participate in a program to support them through the separation. The court also made detailed provisions for international travel, changeovers, and the division of costs for the Independent Children's Lawyer.

Orders

Orders of the court

SYC 1754 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HASEGAWA

Applicant

AND:

MR HASEGAWA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

17 DECEMBER 2024

THE COURT ORDERS BY CONSENT:

1. All previous parenting orders are discharged.

Parental responsibility

2. The Mother have sole parental responsibility to the exclusion of the Father in respect of all long-term decisions in relation to the children X born 2012 and Y born 2016 (“the children”).

3. The Mother shall ensure that prior to making any significant long-term decisions in respect to the children’s care, welfare and development, such as in respect to their schooling, health and religion, she shall first notify the Father in writing and invite the Father’s views in respect to any such decision and the Father shall have seven days to provide a response in writing.

4. The Mother is restrained by injunction from changing the children’s names.

Live with order

5. The children shall live with the Mother.

Communication

6. The parents shall use Our Family Wizard to communicate with each other as necessary to give effect to these Orders unless otherwise agreed between them in writing and except in an emergency when they may communicate by any convenient means, including by text message.

7. Each parent shall notify the other of any change in their residential address not less than seven days prior to any move and notify each other of any change in mobile telephone numbers within 24 hours of changing mobile telephone numbers.

8. Upon such time that the children are in possession of their own communication devices, neither parent shall prevent the children from communicating with the parent they are not currently spending time with using that device.

Restraints

9. WITHOUT ADMISSION, the Mother and the Father are restrained from:

(a) Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the Father, or any other member of either party’s household;

(b) Physically disciplining the children;

(c) Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

10. Each parent is at liberty to obtain all relevant medical records or information in relation to the children’s health care and wellbeing, including dental, hospital, and therapeutic intervention records, and to consult with medical, allied health or dental practitioners and any specialists and/or therapists in order to obtain any information he or she may require in relation to any of the children and service a copy of these sealed Orders upon such medical practitioner, dentist, therapist, specialist or hospital is a sufficient authority for that purpose.

11. Each parent may discuss in detail with any teacher, coach, principal, school counsellor or other such person at any education or sporting institution or other such or like facility at which any of the children attends or has attended, at that parent’s request and cost (if any), all information about the children’s education, progress and participation in school, sports or counselling related or other activities and service of a copy of these sealed Orders upon such institution or person is sufficient authority for that purpose.

The Father’s therapy

12. The Father shall continue to attend upon Ms B at C Centre (or another suitably qualified professional) (“the Father’s counsellor”) for the purposes of engaging with counselling.

13. That to give effect to Order 12, the following shall apply:

(a) The Father shall do all things and acts necessary to comply with any reasonable request by the Father’s counsellor, including, but not limited to:

(i) Attending upon the counsellor for a minimum period of 12 months, with appointments to occur from time-to-time as may be determined by the counsellor;

(ii) Attending upon any other medical practitioner recommended to the Father by the Father’s counsellor.

14. That the Father shall be at liberty to provide to the Father’s counsellor a copy of:

(a) These orders;

(b) A copy of any expert report prepared in these proceedings on parenting matters;

(c) A copy of any reasons for judgment.

15. That the costs of the Father’s counsellor shall be paid solely by the Father as and when they fall due.

The Mother’s therapy

16. The Mother shall attend upon a counsellor specialising in high conflict post-separation dynamics (“the Mother’s counsellor”) for the purposes of engaging with counselling.

17. That to give effect to Order 16, the following shall apply:

(a) The Mother shall do all things and acts necessary to comply with any reasonable request by the Mother’s counsellor, including, but not limited to:

(i) Attending upon the counsellor for a minimum period of 12 months, with appointments to occur from time-to-time as may be determined by the counsellor;

(ii) Attending upon any other medical practitioner recommended to the Mother by the Mother’s counsellor.

18. That the Mother shall be at liberty to provide to the Mother’s counsellor a copy of:

(a) These orders;

(b) A copy of any expert report prepared in these proceedings on parenting matters;

(c) A copy of any reasons for judgment.

19. That the costs of the Mother’s counsellor shall be paid solely by the Mother as and when they fall due.

The children’s therapy

20. Forthwith, the parents are to do all acts and things as are necessary to enrol the children in the D Program, through E Services, or any other such program as agreed between the parties in writing designed to support children in dealing with parental separation (“the program”), conducted by an organisation listed by the Minister pursuant to s 10C(2) of the Family Law Act 1975 (Cth).

21. For the purpose of the immediately preceding Order, the parents are to facilitate the children’s attendance and participation in the program until the conclusion of the program or as otherwise determined appropriate by the facilitator of the program and shall pay such costs equally.

THE COURT FURTHER ORDERS:

Spend time orders

22. The children shall spend time with the Father by agreement between the Mother and the Father in writing and in the absence of such agreement as follows:

(a) Until 10 January 2025, in accordance with the interim orders made 15 November 2024;

(b) From 10 January 2025 until the end of term 1 in 2025, each alternate weekend in accordance with the pattern established pursuant to the interim orders from 10.00 am on Saturday until 5.00 pm on Sunday with the Father’s partner, Ms F, or another person agreed in writing, to be substantially present during such time.

(c) During the term 1 and term 2 2025 school holidays, from 10.00 am on Friday until 5.00 pm on Sunday on the weekend when they would otherwise be spending time with the Father pursuant to Order 22(b).

(d) During term 2 and term 3 2025, from the commencement of school or 9.00 am on Friday until 5.00 pm on Sunday each alternate weekend.

(e) During the term 3 school holidays 2025, from 10.00 am on Friday until 9.00 am on Monday on the weekend when they would otherwise be spending time with the Father pursuant to Order 22(d).

(f) From the commencement of term 4 2025 and thereafter during school terms, from the commencement of school or 9.00 am on Friday until at school or 9.00 am on Monday each alternate weekend.

(g) During the 2025/2026 summer school holidays and thereafter for each summer school holiday period for two block periods of five nights on dates and times to be agreed by the parties in writing and in the absence of such agreement commencing at 10.00 am on the second and fourth Sundays of such school holiday periods and concluding at 10.00 am on the following Friday.

(h) During each short school holiday period during 2026 and thereafter during each short school holiday period for a single block period of five nights on dates and times to be agreed by the parties in writing and in the absence of such agreement with such period to commence at 10.00 am on the second Sunday and conclude at 10.00 am on the following Friday of each such school holiday period.

(i) Each Christmas Eve from 10.00 am until 5.00 pm.

(j) On Father’s Day from 10.00 am until 5.00 pm should such day not fall during a period when the children would otherwise spend time with the Father pursuant to these orders.

(k) On the Father’s birthday from after school to 5.00 pm on school days and from 2.00 pm to 5.00 pm on non-school days when they are not otherwise spending time with the Father pursuant to these orders.

(l) On the children’s birthdays from after school to 5.00 pm on school days and from 2.00 pm to 5.00 pm on non-school days when they are not otherwise spending time with the Father pursuant to these orders.

23. The children’s time with the Father is suspended on the following occasions:

(a) On Mother’s Day from 10.00 am and for the remainder of the Mother’s Day weekend;

(b) From 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day;

(c) On the children’s birthdays from after school to 5.00 pm on school days and from 2.00 pm to 5.00 pm on non-school days when they are not living with the Mother pursuant to these orders;

(d) On the Mother’s birthday from after school to 5.00 pm on school days and from 2.00 pm to 5.00 pm on non-school days when they are not living with the Mother pursuant to these orders.

24. Until the conclusion of 2026, the children’s time with the Father is to be spent in the greater Sydney area.

Attendance at school and other events

25. Subject to Order 26 below, each parent is at liberty to attend events involving the children including but not limited to sporting functions, school events and extra-curricular activities (“the event”) that allow for parental attendance or participation during the time the children are with them pursuant to these orders, and the parent who the children are not with at the relevant time is restrained from attending the event unless agreed in writing.

26. At the commencement of each school term, the Father may nominate to the Mother in writing one school event that falls outside the time the children will ordinarily be spending with him which he will attend during that school term (“the nominated school event”), and the Mother is then restrained from attending the nominated school event unless agreed in writing.

27. The nominated school event shall not include a Mother’s Day event, and may only include the main end-of-year school event for each child once every two years.

28. The parents are each at liberty to attend parent-teacher interviews or similar, provided that: the Mother will notify the Father of the time of her appointments in sufficient time to enable the Father to make his own appointments, and the Father will ensure that his appointments occur at times which will not require the Mother and Father to be in the same location at the same time.

Changeover

29. The location for changeover shall be as agreed between the parents in writing and failing agreement as follows:

(a) If changeover occurs on a school day, then at the children’s school; and

(b) If changeover does not occur on a school day, or at a time earlier or later than the children’s attendance at school or after school-care, all such changeovers shall be at a public venue agreed to by the Mother and the Father in writing, and in the absence of such agreement, at the McDonalds Restaurant at Suburb G.

(c) The Mother and the Father shall each be entitled to be accompanied by one other adult person to any such changeovers or alternatively arrange for an adult person known to the children to attend changeovers on their behalf.

(d) Each of the parents shall remain in their respective vehicles at changeover except in an emergency.

Communication

30. The Mother and the Father are restrained from approaching or communicating with each other except in accordance with these orders.

31. Each parent shall notify the other parent of any health or medical concerns in relation to the children as soon as practicable and any medication required to be administered to the children shall be provided to the other parent at changeover.

32. Each parent shall, as soon as is reasonably practicable, inform the other parent of any serious illness or injury sustained by the children whilst in that parent’s care and provide particulars of any treatment required or received by the children together with the names and addresses of the treatment provider.

33. Each parent shall facilitate telephone contact or audio-visual communication between the children and the parent they are not currently spending time with at all reasonable times sought by the children.

International travel and passports

34. The Mother is permitted to travel outside of the Commonwealth of Australia with the children during times when the children are not spending time with the Father, or as agreed in writing with the Father, provided that:

(a) no later than 30 days prior to the intended date of departure, the Mother must provide the Father with written details of the proposed travel including all destinations of travel, dates and methods of travel;

(b) no later than 14 days of the intended date of departure, the Mother must provide the Father with a detailed and complete itinerary showing the following information:

(i) dates and methods of travel (including flight and ship number, departure and arrival);

(ii) all destinations of travel; and

(iii) addresses and telephone details (land line) of all accommodation where the children will be residing;

(iv) such travel occurs within a country that is a signatory to the Convention of the Civil Aspects of the International Child Abduction signed in The Hague on 25 October 1980, unless otherwise agreed in writing.

35. The Mother is to have sole parental responsibility in respect to the issue of an Australian passport on behalf of either child and the Father’s consent to the issue of such passport shall not be required.

ICL costs

36. Within 42 days of the date of these orders, or by such other date for payment as is agreed to by NSW Legal Aid, and unless they are excused by NSW Legal Aid from doing so, the Mother and the Father shall each pay half of the costs of the Independent Children’s Lawyer being as follows:

(a) That the Mother pay an amount of $11,248.85 towards the costs of the Independent Children’s Lawyer; and

(b) That the Father pay an amount of $9,598.85 towards the costs of the Independent Children’s Lawyer.

37. The Independent Children’s Lawyer is requested to explain these orders to the children as soon as practicable.

NOTATIONS

A. Pursuant to s 65(D) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Having considered the evidence and for the reasons set out below I have resolved those issues as follows:(1)Time will progress to three nights a fortnight during school terms, being from Friday after school until Monday at school.(2)After 10 January 2025, time will commence at one overnight a fortnight until the commencement of the term 1 school holidays 2025, then progress to two nights until the commencement of the term 3 school holidays, and then progress to three nights. Time will not be required to be supervised but, until time has progressed to two nights, will be subject to the condition that Ms F is substantially present.(3)From the summer holiday 2025/2026, X and Y will have block holiday time of five nights with Mr Hasegawa, as well as time with him on Christmas Eve.(4)The parents will not attend sporting, extra-curricular or school events together, will attend only those events which occur while they have the children in their care, and each term Mr Hasegawa is able to nominate one additional school event that occurs outside of his time with the children and which he will attend and Ms Hasegawa will not.(5)Ms Hasegawa will be permitted to travel overseas with X and Y when they are spending time with her, and Mr Hasegawa will be required to exercise time in the greater Sydney region until the end of 2026.EVIDENCE Ms Hasegawa relied on her own trial affidavit, an affidavit of her mother, Ms K, and an affidavit of her partner, Mr J. Ms K and Mr J were not required for cross examination. Ms Hasegawa’s affidavit was received into evidence without its annexures/exhibits. She was cross examined by counsel for Mr Hasegawa and counsel for the ICL. Mr Hasegawa relied upon:(1)his trial affidavit;(2)an affidavit of his father, Mr M;(3)an affidavit of his partner, Ms F; (4)an affidavit of his cousin, Mr L;(5)an affidavit of his counsellor, Ms C.Mr Hasegawa’s affidavit was received into evidence without its annexures/exhibits. Mr L was not required for cross examination. Mr Hasegawa, Ms F and Ms C were cross examined by counsel for Ms Hasegawa and counsel for the ICL. Documents were tendered in both parties’ cases, including from the ICL’s Tender Bundle, and the exhibits/annexures to the parents’ trial affidavits. Also admitted into evidence was the Family Report of Ms N. Ms N was required for cross examination. The Family Report was nuanced and thorough. Ms N (“the single expert”) was an impressive and considered witness, and I have confidence in her evidence. I have read and considered the affidavits and documents referred to above.RELEVANT LAW (PARENTING ORDERS) When making parenting orders, X’s and Y’s best interests are the paramount consideration. In working out what is in their best interests, I am required to have regard to the matters in s 60CC of the Act. As neither X nor Y is an Aboriginal or Torres Strait Islander child, the matters that apply only to such children are not extracted below. 60CC How a court determines what is in a child’s best interests Determining child’s best interests (1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:(a) consider the matters set out in subsection (2); and (b) …General considerations (2)For the purposes of paragraph (1)(a), the court must consider the following matters:(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and (ii)each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c)the developmental, psychological, emotional and cultural needs of the child;(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f)anything else that is relevant to the particular circumstances of the child.(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b)any family violence order that applies or has applied to the child or a member of the child’s family. I am also required to apply s 60CG of the Act which provides:(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:(a)is consistent with any family violence order; and(b) does not expose a person to an unacceptable risk of family violence.(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Decision

Reasons for decision

The evidence at trial was consistent with the single expert’s observation at paragraph 303 of the Family Report that:The information provided by [Ms Hasegawa] and [Mr Hasegawa] appeared to suggest that incidents of family violence occurred at times of high stress, differences of opinion and difficulties managing [X’s] behaviour. It appears to be in agreement that [Mr Hasegawa’s] acts of violence were not premeditated. This profile of triggers for family violence appears consistent with no significant escalation of family violence due to the separation or during periods of supervised time with the children. This lack of premeditated or controlling violence is more consistent with a capacity to change than positive attitudes about violence and control. I accept that evidence. Conclusions in relation to safety Notwithstanding the finding above, and some issues with Ms Hasegawa’s credibility (including in relation to the recording referred to above), having regard to her own evidence, the unchallenged evidence of her mother and partner, and the evidence of the single expert, I accept that Ms Hasegawa was and is genuinely fearful of Mr Hasegawa as a result of his behaviour towards her and the boys, and genuinely very anxious about the boys spending extended time with him. There is nothing to be gained – at least in this case – from attempting to assess whether that fear is reasonable or not. There certainly appear to be occasions when, to a dispassionate and uninvolved observer, she might be said to have over-reacted, but her behaviour and reaction must be seen in the context of her own experiences and long history with Mr Hasegawa. She has acted protectively towards the boys. Mr Hasegawa conceded in oral evidence that his behaviour had on occasion been appalling and would have frightened the boys and Ms Hasegawa and destroyed Ms Hasegawa’s trust in him. I do not need to make any further findings – neither as to the parties’ credibility nor as to what occurred on each occasion – to determine the relatively narrow issues that remain in dispute between the parties. Also relevant to matters of safety (and also to parental capacity), Mr Hasegawa commenced seeing a counsellor, Ms B, soon after the release of the Family Report. Ms B was on affidavit in the proceedings and was cross examined. Her notes were tendered. Ms B provides Mr Hasegawa with assistance in managing emotions and will be able to give him ongoing support with respect to his parenting. Mr Hasegawa consented to an order that he continue to see Ms B and she gave evidence she was available to provide that support. Mr Hasegawa has attended and received certificates in relation to the following programs, which formed part of Exhibit F4:·P Organisation Taking Responsibility – A Course for Men (the certificate identified that Mr Hasegawa had attended 15 out of the total 18 sessions);·Parenting After Separation Course;·Triple P Online;·An online parenting training course; and·Keeping Kids in Mind Post-Separation Parenting Course.

Ratio Decidendi

Legal Principle Established

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