Hasegawa & Hasegawa
[2024] FedCFamC1F 866
•17 December 2024
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] FamCAFC 173
L & T (1999) FLC 92-875; [1999] FamCA 1699
Division: Division 1 First Instance Number of paragraphs: 97 Date of last submission/s: 15 November 2024 Date of hearing: 11-15 November 2024 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Burke Mangan Lawyers Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Coleman Greig Lawyers Counsel for the Independent Children’s Lawyer Mr Jackson Solicitor for the Independent Children’s Lawyer Brian Samuel & Associates ORDERS
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hasegawa & Hasegawa has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BEHRENS J
BACKGROUND
These proceedings concern X, now aged 12, and Y, now aged eight. The children’s parents are Ms Hasegawa and Mr Hasegawa. They started living together in about 2008 and married in 2010. There is a dispute between the parties as to their date of separation, with Ms Hasegawa contending that they separated in February 2019 and then lived under one roof until February 2020, and Mr Hasegawa contending that they did not separate on a final basis until February 2020. I do not need to resolve that dispute. Mr Hasegawa has re-partnered with Ms F. Ms Hasegawa has re-partnered with Mr J.
Mr Hasegawa works as a professional on a full-time basis. He has worked for his current employer for 21 years. Ms Hasegawa works part-time as a consultant.
Since separation, X and Y have lived with Ms Hasegawa. Immediately after Mr Hasegawa moved out of the family home, the children spent some time with him, mostly at the family home. In early 2020, an interim Apprehended Domestic Violence Order (“ADVO”) was made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for the protection of Ms Hasegawa, X and Y. This followed two incidents in which first Y and then X were physically hurt by Mr Hasegawa (he says accidentally). A short time later, the interim ADVO was amended to prevent Mr Hasegawa from approaching Ms Hasegawa or the children, attending certain locations or contacting them other than in prescribed circumstances. By consent and without admissions, a two-year final ADVO in those terms was made in mid-2020.
Ms Hasegawa commenced these proceedings on 17 March 2022 as the expiry date for the ADVO approached.
X and Y spent no time with their father from mid-March 2020 until 13 September 2020. On that date, by agreement between the parents, the children commenced spending professionally supervised time with Mr Hasegawa for three hours each alternate Sunday. On 28 April 2023, interim orders were made by Judge Dunkley providing for the children to spend time with Mr Hasegawa for six hours each alternate Sunday, with that time supervised by family members. That was the arrangement which was in place until I made further interim orders at the conclusion of the trial, which added Mr Hasegawa’s partner as a supervisor, added an hour to the Sunday time, and provided for overnight time to commence from 11 January 2025. In terms of time with their father, the children have therefore not had anything but supervised time during the day for more than four years.
Mr Hasegawa admits that he has used family violence towards Ms Hasegawa and towards and in the presence of X and Y. His evidence was to the effect that this behaviour resulted from poor emotional control in the context of a difficult relationship and the stressful circumstances of parenting young children. He gave evidence that he and Ms Hasegawa would yell at each other in front of the children. He denies that his use of family violence was to the extent alleged by Ms Hasegawa. He denies that he was financially controlling or monitored Ms Hasegawa’s movements. Submissions were made on his behalf to the effect that: he has attended a men’s behavioural change program and parenting courses, has attended and continues to attend counselling, has diligently participated in the supervised time that was available to him, is now in a low conflict relationship, has learnt to deal with strong emotions more effectively and that the boys should now be able to spend unsupervised, overnight and holiday time with him.
Ms Hasegawa gave evidence of “almost daily” abuse from Mr Hasegawa over most of the relationship and that she was and remains in fear of him and is anxious about the boys spending time with him. She describes the violence she experienced as “coercive and controlling” and gives evidence that Mr Hasegawa was physically and verbally abusive towards her and the boys, financially controlled her and monitored her movements. Under cross examination, and prior to hearing the oral evidence of Mr Hasegawa, she gave evidence that she did not accept that Mr Hasegawa had acknowledged his conduct towards her or the children. She gave evidence that, he does not know whether he is genuine when he expresses remorse and regret for his behaviour, whether he has undertaken genuine efforts to self-improve, whether he has a genuine desire to be in the boys’ lives, whether he loves the boys, and said that she does not agree that he wants what is best for them. When asked what benefit the boys would derive from a relationship with their father, she could only offer “that they understand who their biological father is.” She conceded early in cross examination that it was really her view that there is no benefit for X and Y from spending time with Mr Hasegawa.
The Family Report in this matter was released on 1 December 2023. First interviews and observations for that report were carried out in August 2023. Follow up interviews occurred in November 2023.
X and Y were represented by an experienced Independent Children’s Lawyer (“ICL”). I was told that the ICL had last seen and spoken with X and Y on 13 August 2024.
PROPOSALS OF THE PARENTS AND THE ICL
By her Case Outline filed 5 November 2024, Ms Hasegawa sought sole parental responsibility, that X and Y live with her, and continue to spend time with Mr Hasegawa supervised by family members pursuant to the interim arrangement as ordered by Judge Dunkley, with supervision to be lifted upon Mr Hasegawa having completed a further two years of counselling.
By his Case Outline filed 5 November 2024, Mr Hasegawa sought that the parents have joint parental responsibility, that time immediately commence unsupervised, and ultimately progress to a 9/5 arrangement and half school holidays.
On the fourth day of the trial, the ICL filed a Minute of Orders sought, which was amended the next day and became MFI3. The ICL’s Amended Minute of Orders sought is annexed to these Reasons as Annexure A. The ICL sought that Ms Hasegawa have sole parental responsibility and took what might be described as an intermediate position in relation to time, such that the children’s time with Mr Hasegawa would progress to three nights a fortnight, and to blocks of five nights during the holidays.
Prior to submissions, I was provided with an amended Minute of Order sought by the mother (MFI5), and I was told that the father now consented to the orders sought by the ICL and the mother in relation to parental responsibility. By her amended Minute, the mother sought that the children’s time with Mr Hasegawa continue as daytime only and be supervised by Ms F until the end of term 1 2025 and then progress to one overnight (being Saturday to Sunday) unsupervised, followed by a further progression from the end of term 2 2025 to two overnights (being Friday to Sunday). She also sought an order that the parents only attend events involving the children when such events fall during the parents’ respective times that the children are living with them.
By the time of submissions, therefore, the issues between the parties had narrowed, such that both parents and the ICL consented to orders that:
(1)Ms Hasegawa have sole parental responsibility for X and Y, that she be required to keep Mr Hasegawa informed and that she be restrained from changing X’s or Y’s names. I am satisfied that those orders are in X’s and Y’s best interests and I make those orders by consent.
(2)X and Y live with Ms Hasegawa. I am satisfied that order is in X’s and Y’s best interests and I make that order by consent.
(3)There be various orders for each of the parents’ own therapy and for X’s and Y’s therapy. Whilst this is not a matter in which the parenting orders I am making are conditional upon the parent’s participation in therapy (L & T (1999) FLC 92-875), I am nevertheless able to make orders for the parents’ own treatment pursuant to s 67ZC of the Act in circumstances where, in light of the father’s history of using family violence against and in the presence of Ms Hasegawa and the children, as well as Ms Hasegawa’s difficulties facilitating a positive relationship between the children and Mr Hasegawa, the parent’s attendance upon their respective therapies is “necessary for the welfare of the children” (Jacks & Sampson (2008) FLC 93-387 at [222], [224], [226]). I note also that the parents have consented to such orders being made. I am satisfied that those orders are in X’s and Y’s best interests and are otherwise appropriate for the welfare of X and Y and I make those orders by consent.
(4)There be various restraints pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”). I am satisfied that those injunctive orders are appropriate for the welfare of X and Y, and I make those orders by consent.
INTERIM ORDERS
After hearing submissions, and in circumstances where the single expert indicated in oral evidence: first, that she would have hoped there had been some progression in the implementation of the Family Report recommendations by now, and second, that, in light of X’s impending entry into high school, “significant changes to the children’s living or spend time arrangements” should preferably occur in 2024 so as to enable him, as well as Y, time to adjust (Family Report, paragraph 292), I made interim orders on the final day of the trial, including orders which progressed time to overnight, as follows:
5. The children shall spend time with the Father by agreement between the parents in writing, with such time to be supervised by [Ms F], or any other person who has previously supervised the Father’s time with the children, and in the absence of such agreement as follows:
a.From the date of these orders until 10 January 2025, each alternate Sunday from 10am until 5pm.
b.From 10am until 5pm on Christmas Eve.
c.Commencing the weekend of 11 January 2025 and then each alternate weekend from 10am on Saturday until 5pm on Sunday.
BRIEF SUMMARY OF REMAINING CONTESTED ISSUES AND OUTCOME
The remaining main issues to be determined are:
(1)The progression of X’s and Y’s time with Mr Hasegawa during school terms and, in particular, whether it progresses to three nights a fortnight (as the ICL sought), two nights a fortnight (as Ms Hasegawa sought) or five nights a fortnight (as Mr Hasegawa sought).
(2)The timing and pace of the progression, including the progression away from supervision.
(3)Whether X and Y should have block holiday time with Mr Hasegawa and, if so, how long that holiday time should be, when it should start and how it should progress.
(4)What orders should be made for the parents to attend extra-curricular and sporting events for X and Y.
(5)Whether orders should be made permitting the parents to travel with X and Y.
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.
Amendments to the Act introduced by the Family Law Amendment Act 2023 (Cth) removed the separate s 60CC “best interests” consideration of “any family violence involving the child or a member of the child’s family”, and “family violence” is now only specifically mentioned in s 60CC in relation to safety. Nonetheless, the use of family violence continues to be relevant to children’s best interests beyond considerations of safety – and particularly in relation to parental capacity. The existence of family violence also provides important context for understanding the evidence about the behaviour of those against whom it is used. In this matter, for example, it explains Ms Hasegawa’s anxiety and views about Mr Hasegawa, and – as the single expert opined – provides at least a partial explanation for what the boys have said to the single expert and their attitudes to time with Mr Hasegawa.
ANALYSIS OF THE EVIDENCE BY REFERENCE TO THE BEST INTEREST CONSIDERATIONS
Safety
I was urged by counsel for the ICL to see this as “not being an unacceptable risk case.” With respect, that oversimplifies the relevant inquiry for the Court. I accept that this is not a case where supervision is required to make safe any time that the boys spend with their father– if that is what was meant by this “not being an unacceptable risk case”, then I agree. Ultimately, it was not Ms Hasegawa’s case that the boys’ time with their father could only be safe if it was supervised. That is not to say, however, that there are no issues of safety or risk to be considered in this matter. Further, as indicated above, family violence is relevant to other matters I am required to consider, and to understanding the evidence.
Ms Hasegawa gave evidence about multiple occasions when Mr Hasegawa used family violence towards her, towards X and in the presence of the boys. I have summarised the effect of that evidence above.
There was corroborative evidence in respect of some of these occasions, including:
(1)An unsent email dated 2 February 2020 which Mr Hasegawa drafted as if it was to his parents and which became Exhibit M13. It is a lengthy email, and includes complaints about Ms Hasegawa’s behaviour and the state of their relationship. It includes the following admissions:
I have on many occasions, treated [X] poorly when I’ve been angry with him or upset at his behaviour or actions. I’ve yelled at him a lot, sometimes been quite mean with words, called him names, been overly rough with him, accidentally hurt him more than once in trying to manage him. I have dragged him by his arms and legs, stood over him threateningly, forcefully made him sit once by pushing him down by his shoulders. On a couple of occasions more recently, when trying to stop him hurting me, [Ms Hasegawa] or [Y] by kicking, I have inadvertently hurt him by grabbing his legs whilst he was kicking. I once very stupidly and regrettably, threatened to kill him when he was about 4 and out of control one night (in a hotel room when we were on holiday […]). I openly admit I have always found him very challenging to deal with when he gets naughty and have a lot of difficulty managing his behaviour. Of course, over time, it has become more challenging and difficult as he has learned to respond to my behaviour towards him. It makes me sad and upset, I regret it a lot and I want so very much for it to be different.
…
I admit that I have:
•yelled, screamed, intimidated, threatens [sic], insulted, sworn, name-called
•Done these things in front of [the] kids, in increasingly frequent amounts
•Been physical towards [Ms Hasegawa] on three specific occasions that I recall (one – in 2008, just after she moved in to [Suburb H], I became frustrated about something she was doing clearly to upset me and be cruel, and I slapped her on the face; two – in 2009, [i]n [Suburb O], during an argument in the [k]itchen, I used my arm and shoulder to roughly push her aside and into the refrigerator, as I was trying to get away out of the kitchen; three – in our current home, I got frustrated and upset by something she was saying in our en-suite, and a [sic] tossed a screwed up paper ball that hit her in the head)
•Been physically threatening on other occasions (not that I’ve threatened her with violence or done things like the above, but that would count as being physical if contact was made or it went further, such as pushing past her when she’s blocked me from leaving a room or space, etc)
It is possible there are specific things that [Ms Hasegawa] might recall that I have not put here.
…
Late in 2018, there was a night I really had trouble with [X] and was very threatening. Afterwards, [Ms Hasegawa] told me I had to change or get out.
…
When I moved out, I also ‘agreed’, at [Ms Hasegawa’s] insistence, to do a men’s behaviour change course at [P Organisation]. I was resentful initially, again the fairness thing, but I ended up considering that it couldn’t be a bad thing and that I could only be responsible for myself anyway. So I did it. It started in July last year, running 20 weeks to December. The course was for men who had been abusive in a domestic relationship … I came to realise that yes, what I had done was abuse by definition and that I was responsible for my own actions, not those of others … The course was centred around not trying to blame and accepting responsibility for your own actions.
…
However, by the end of the course I had developed the feeling – along with many of the other guys in the course – that in getting you to accept responsibility and not blame, they were actually neglecting to acknowledge that the other party played a role in relationship breakdown, and may be a suite [sic] themselves!. It came about that many of the partners of the men in my course were also attending the [P Organisation] ‘women victims of domestic abuse course’ that basically just reiterates the narrative of: ‘you’ve done nothing wrong, your partner is a demon and needs to change’.
Despite that, I wholly acknowledged I had done wrong by [X] and [s]o over the past year, [I] have really to [sic] change the way I behave towards him (and [Y]). I believe it is slowly working and is helping me not to react and respond the way I have previously MOST of the time (not all). The problem is that a) he is clearly damaged and has issues of his own now and b) [Ms Hasegawa] plays like a running commentary of any situation of ‘he’s like this because of you’, ‘don’t you see, he’s copying you’…
(2)A text message exchange between the parents in February 2020 in which Mr Hasegawa admitted calling X “a little fucker” and then tried to justify it to Ms Hasegawa on the basis of X’s behaviour (that exchange formed part of Exhibit F7). He did, however, acknowledge that referring to his son in those terms was inappropriate.
(3)Four video recordings, admitted over objection, two of which depict Mr Hasegawa swearing abusively at Ms Hasegawa. One (Exhibit M20) is apparently a recording of Mr Hasegawa’s reaction to Ms Hasegawa having forwarded some information to his work email address (she gave evidence that the use of the work email address was unintended). In Exhibit M20, he engages in an explosive tirade of abuse – referring to Ms Hasegawa as “a bitch’, “a fucking bitch”, “a fucking cow”. On that occasion the children were not present, but would likely have been impacted by their mother having been subjected to that abuse. In one of the other videos (Exhibit M13), he refers to her as a “fucking idiot” in the presence of the children.
(4)Ms Hasegawa conceded under cross examination that another of those recordings constituted a re-recording of a previous recording she had made. I was troubled by this evidence because:
(a)her affidavit evidence (mother’s affidavit, paragraph 581) was clearly designed to give the impression that the recording was the original recording;
(b)she was clearly “thrown” by a question from me about whether the recording was in fact a re-recording and she failed to provide a clear explanation under cross examination about why it had been re-recorded; and
(c)the re-recording ended after Ms Hasegawa had put the proposition to Mr Hasegawa that “[y]ou’ve been abusing me longer than the kids have been born”.
I was left with the suspicion that the re-recording had been made to edit the end of the original recording and remove a denial by Mr Hasegawa, but I am not able to make that finding on the balance of probabilities because Mr Hasegawa gave no evidence about it. This was so notwithstanding that, given the recordings had not been disclosed prior to the filing of his trial affidavit, I had indicated I would likely grant him leave to give any oral evidence in chief about the recordings.
Mr Hasegawa’s concessions
In his affidavit, Mr Hasegawa gave evidence in which he relevantly conceded:
·There was an occasion on 2 February 2020 in which, after having witnessed X swing a wet towel around the bathroom, he “inadvertently gripped [X’s] underarm” in an effort to take the towel from him and, in so doing, caused him pain (paragraph 42). Though uninjured, Y was also in the bathroom when this interaction between X and Mr Hasegawa occurred. In relation to this incident, Mr Hasegawa deposed at paragraph 46 that “I appreciate that this behaviour was not appropriate and might have caused the children distress, which I regret”.
·He sent two emails to Ms Hasegawa despite the existence of a no contact ADVO protecting Ms Hasegawa and the children from him (paragraph 52). Whilst Mr Hasegawa conceded that “I should not have done so”, he gave further evidence that “I simply forwarded the correspondence [being a water bill and information regarding Y’s preschool] as I deemed it urgent” (paragraph 52). I address this matter further below.
·At paragraph 174, Mr Hasegawa deposed that he accepted “some of my past behaviour has been unacceptable”, and that when he and Ms Hasegawa would argue, which was on a regular basis, they would both exhibit “significant aggression at times” including “yelling, screaming, insulting and swearing”. With respect to what he said were the “rare” instances of physical violence, Mr Hasegawa deposed that both he and Ms Hasegawa would, for example, “push and jostle one another, and … physically [block] each other’s passage from a room” (paragraph 174). He also admitted to engaging in name calling with Ms Hasegawa, though qualified this admission by noting that he did so in response to Ms Hasegawa calling him names such as "'lazy'", "'fucking useless'" or "'half job [H]arry'" (paragraph 189). He acknowledged that there were occasions when the children had been present during these altercations between himself and Ms Hasegawa, and that “behaviour such as that exhibited by me could have come across as frightening or threatening” to them and caused Ms Hasegawa to fear for her safety and that of the children (paragraph 175). He also gave evidence that there had been times when X and Y had told their parents to stop yelling at one another (paragraph 199), and that there was an occasion when the children hid in Y’s bedroom cupboard whilst their parents argued (paragraph 229).
·In approximately 2008, in an attempt to stop Ms Hasegawa from continuing to destroy some paperwork which belonged to him and deleting important information from his phone, and in response to her laughter, he slapped her on the arm (paragraph 182). Mr Hasegawa deposed that he regretted taking this course of action (paragraph 182).
·During a verbal argument with Ms Hasegawa, and in response to her shoving Mr Hasegawa into a bench in order to re-enter the kitchen (having shoved Mr Hasegawa earlier to exit the room), he “shoved back with my arm and shoulder to make my way out of the kitchen” (paragraph 184). Mr Hasegawa acknowledged that, as a consequence of his actions, Ms Hasegawa made contact with the refrigerator, and again expressed regret for his reaction (paragraph 184).
·At paragraph 185, Mr Hasegawa described an occasion in about 2009 when he caused damage to a door and doorframe by barging into the bedroom whilst Ms Hasegawa was inside. With respect to the circumstances surrounding his entry into the bedroom on this occasion, I discuss my findings in further detail below.
·Mr Hasegawa gave evidence about an incident in which he punched his neighbour when in the presence of X and Ms Hasegawa, in retaliation to the neighbour becoming physical with him and in the context of a pre-existing neighbourhood dispute (paragraph 188).
·Whilst in Country Q with Ms Hasegawa and the children in 2016, he yelled at X words to the effect “’I am going to fucking kill him’” after struggling to settle him down for bed (paragraph 190). Mr Hasegawa went on to acknowledge that his behaviour on this evening was “entirely inappropriate” and may have incited fear in Ms Hasegawa (paragraph 190). Whilst Mr Hasegawa made these concessions, there are certain aspects of this event that he disputed in his affidavit and continued to dispute in cross examination – I make findings about this incident further below.
·Mr Hasegawa acknowledged that there have been occasions on which his interactions with X have been physical in nature and/or involved yelling at him, though he said that such conduct has not been carried out with the intention of hurting X. In addition to the behaviour conceded to in the above examples, such conduct has included picking X up to place him on timeout and holding him in such a way as to prevent him from hitting or kicking his father (paragraph 192), pulling X out of the pool “by one arm” when he was not a strong swimmer (paragraph 195), picking him up to take him to timeout in his room and accidentally tripping, causing X to bump his mouth awkwardly on the bed (paragraph 208), holding X’s hands together to lead him to his bedroom on an occasion when he was interfering with Mr Hasegawa settling Y down for bed (paragraph 210), grabbing or picking X up “to march him back to bed” when he ignored previous instructions to do so and making comments to X to the effect of “’you’re being a little monster’” or ‘”get back to bed, you little monster” (paragraph 212) and grabbing his shoulders and pushing him down on a step to calm down after X had ignored previous instructions to stop using a stick to hurt Y (paragraph 230).
·In February 2016, he threw an empty packet which had contained screws used to install wardrobe drawers and the scrunched plastic wrapping at Ms Hasegawa, hitting her in the chest. Mr Hasegawa engaged in this conduct after Ms Hasegawa made what he described as “derogatory comments” about the quality of and time taken to complete the drawers (paragraph 198). Mr Hasegawa acknowledged that X witnessed this behaviour and expressed remorse (paragraph 198).
·He hurt X’s head and neck during an incident in approximately early 2017, but deposed that this was an accident caused by Mr Hasegawa falling on top of X after attempting to re-secure a canopy that hung above X’s bed (paragraphs 200-202). Mr Hasegawa deposed that Ms Hasegawa, upon learning that X’s head and neck were sore, left the marital home with the children (paragraphs 202-204).
·Mr Hasegawa admitted to spitting at Ms Hasegawa during an argument about his fidelity, and that after she spat at him in retaliation, they proceeded to spit at each other one further time (paragraph 228). Mr Hasegawa deposed that he regretted the manner in which he and Ms Hasegawa argued on this occasion (paragraph 228).
·In early 2019, Mr Hasegawa became angry at X and crouched down and held his hands whilst yelling at him (paragraph 234). Ms Hasegawa than entered the room, accused Mr Hasegawa of hurting X – an accusation which he denied – and began to talk to X (paragraph 234). Mr Hasegawa then left the room, and upon his return, observed Ms Hasegawa to be asking X about whether Mr Hasegawa had hurt him whilst her phone, which was running the voice recording application, was placed on X’s bed (paragraph 234). Mr Hasegawa conceded that upon seeing this, he became angry and asked Ms Hasegawa in a stern voice “’what are you recording? Why are you putting words into [X’s] mouth?’”. Mr Hasegawa said that at Ms Hasegawa’s retort that she was recording “’something that will help me later’”, he became angry and yelled at her “’[h]ow dare you record me! Stop recording me, you fucking bitch!’” (paragraph 235). Ms Hasegawa then yelled back at Mr Hasegawa and the children, both of whom were in the room at this stage, began to cry and implore their parents to stop arguing (paragraph 237). Mr Hasegawa conceded that he then made a comment to the children to the effect “’what mummy is doing is really hurtful, really disgusting!’”, and that after Ms Hasegawa yelled back “’how dare you say something like that to them’”, X left the room and slammed his door (paragraph 237). Mr Hasegawa acknowledged that he then took Ms Hasegawa’s phone from X’s bed and stopped the recording, and that he and Ms Hasegawa then began to grapple, during which Ms Hasegawa accidentally slapped him in the face and Mr Hasegawa swore at her (paragraphs 237-238). Mr Hasegawa then deleted the voice recording and threw Ms Hasegawa’s phone back on X’s bed (paragraph 238). Mr Hasegawa deposed that this event was one about which he felt “sincere regret” (paragraph 241).
·In about January 2020, Mr Hasegawa was engaged in a confrontation with Ms Hasegawa, which involved “yelling and screaming” about her forwarding his emails with the intention of using “what I had completed as an exercise through my Men’s Behaviour course against me”, when he ran to Ms Hasegawa’s bedroom in order to access her phone (paragraph 247). Ms Hasegawa had run after him into the room and as he was using her phone, he “was holding her off while she tried to grab it back from me, at times striking my back and arms with her fists” (paragraph 247). Upon deleting the material in question from her phone, Mr Hasegawa pushed the phone back into Ms Hasegawa’s hands and “pushed past her to get out of the room” (paragraph 247).
Mr Hasegawa made the following general concessions in cross examination:
(1)at times his behaviour towards his family has been violent;
(2)he has been guilty of verbal abuse towards Ms Hasegawa;
(3)he has used verbal abuse towards his children on occasion;
(4)he had used physical abuse towards Ms Hasegawa;
(5)he had used physical abuse towards X “on a couple of occasions”;
(6)“on a handful of occasions” (which he later described as between 20 and 30 occasions over the course of several years) his verbal and physical violence towards Ms Hasegawa had occurred in the presence of the children;
(7)Ms Hasegawa would struggle to trust him;
(8)X would struggle to trust him because of what he’s done and what X has seen;
(9)Y “could well” struggle to trust him based on what Y has seen;
(10)he had modelled “really appalling behaviour” for his children;
(11)Ms Hasegawa would still be experiencing distress as a result of his family violence;
(12)he does “not necessarily” doubt that Ms Hasegawa’s fear of him is genuine;
(13)Ms Hasegawa’s lack of trust in him is sincere and understandable;
(14)Ms Hasegawa behaved generally in a protective manner to the children when they lived together;
(15)that the children, having experienced his family violence, would have a sense of protection towards Ms Hasegawa.
Notwithstanding these concessions at the beginning of cross examination, Mr Hasegawa’s evidence about some matters was unsatisfactory. In particular, as set out below, I prefer Ms Hasegawa’s evidence in relation to three matters:
(1)Mr Hasegawa breaking through the locked door into their bedroom;
(2)The cause of the red mark on Y’s face; and
(3)The “Country Q incident”.
Breaking the lock on the bedroom door
During cross examination, Mr Hasegawa acknowledged that there had been an incident where Ms Hasegawa had taken herself to the bedroom during an argument with him in order to remove herself from his anger, and that she had locked the door to keep him away. Whilst Mr Hasegawa agreed that barging into the bedroom and thereby causing damage to the door was “appalling”, he then said that he could not recall telling the single expert that he “’had’” to break the door – despite this term appearing in inverted commas in the Family Report at paragraph 152, indicating that the single expert was recording the words he had used – and agreed with the proposition that the single expert’s description of this event in the Family Report was a “misreport”. When asked what happened when he entered the room after smashing the door, Mr Hasegawa said that the argument with Ms Hasegawa continued, but that the damaged door gave them “something else to concentrate on”, such that the argument was “dulled” to some degree.
This evidence about the circumstances surrounding the damage to the door was inconsistent with Mr Hasegawa’s affidavit evidence, in which he deposed that the only occasion in which he “had to barge the [bedroom] door open” was when Ms Hasegawa was inside the bedroom and the lock on the door “became stuck from the inside” (paragraph 185). He deposed that, upon entering the room and seeing the damage he had caused to the door in so doing, he and Ms Hasegawa agreed that the bedroom did not need a lock, and he then removed the lock and completed repairs to the door (paragraph 185). Mr Hasegawa then proceeded, at paragraph 186, to deny that there was an incident where he screamed at Ms Hasegawa after she locked herself in the bedroom and then “forcefully” entered the room and “pinned her on the bed”.
During cross-examination he then conceded that the “one time” he caused damage to the bedroom door was when he sought to enter the bedroom during a fight with Ms Hasegawa, with the consequence that paragraph 185 of his affidavit was incorrect.
Conversely, Ms Hasegawa deposed there were two occasions in about 2009 or 2010 when, following an argument with Mr Hasegawa, she entered and locked the door of their bedroom and Mr Hasegawa, after yelling through and banging on the bedroom door, hit it with such force that he was able to enter the room and, in so doing, damaged the door (mother’s affidavit, paragraphs 363-375). With respect to the second occasion (the lock having been reinstalled by Mr Hasegawa after he had broken it during the earlier incident (mother’s affidavit, paragraph 368)), Ms Hasegawa deposed that she was on the bed when Mr Hasegawa broke through the door, and that he “grabbed me and pushed me back onto the bed and pinned me down by my arms” (paragraph 374). Ms Hasegawa then deposed that he screamed in her face “’[h]ow dare you lock me out. This is my house’”, and that when Ms Hasegawa attempted to escape his grasp, he “pushed me down harder on the bed and was on top of me” (paragraph 374). Following this event, when Mr Hasegawa was repairing the damage to the doorframe, he told Ms Hasegawa “’[y]ou’re not allowed to install a lock on the door’” (mother’s affidavit, paragraph 375).
I accept that these incidents occurred generally in the way described in Ms Hasegawa’s evidence.
The red mark on Y’s face
I do not accept Mr Hasegawa’s account of what happened in early 2020, when it is agreed that Y had a red mark of Mr Hasegawa’s hand on his cheek (the photograph became Exhibit M12). Ms Hasegawa’s evidence about that incident, as contained in paragraphs 646-652 of her trial affidavit, was as follows:
[In early] 2020, I was in [X’s] room getting him ready for bed and reading him books. [Mr Hasegawa] was putting [Y] to bed. I heard [Mr Hasegawa] yell at [Y]: “Get into bed” and “Don’t hit out at me”. I then heard [Y] screaming. [Y] ran into [X’s] room crying “Daddy whacked me”. He pointed to his cheek. I picked [Y] up asking if he was ok. He was crying and holding his cheek. I saw a red handprint on his face.
I was concerned and took [Y] to the bathroom where there was better lighting. I could clearly see a red handprint on his cheek and welts around it from where [Mr Hasegawa] had slapped him.
[Y] was sobbing and kept saying: “Daddy whacked me”.
I ran downstairs to get [Y] a drink of water. When I returned upstairs [Y] had gone into [X’s] room and was crying to [X] pointing at his cheek saying: “Daddy whacked me”.
[Mr Hasegawa] then burst into [X’s] room and was yelling at all of us: “I didn’t whack him, I didn’t whack him. All I did was swish his hand away because he was whacking me. I must have accidentally got his face”.
[Mr Hasegawa] did not apologise and kept repeating: “[Y] was whacking me”.
Later than [sic] night I said to [Mr Hasegawa]: “Swishing someone’s face does not leave that kind of mark”. [Mr Hasegawa] responded: “You’re overreacting, it was nothing”.
Mr Hasegawa’s evidence was as follows (father’s affidavit, paragraph 41):
[In early] 2020, as I was settling [Y] at bedtime, I was lying next to him, reading a book that I held above us. At one point, [Y] became frustrated at the book being read and tried to strike the book away. As I lost control of the book, I reached out quickly to prevent it from falling and accidentally struck [Y] on the side of his face with my hand. [Y] then stormed out of the room and went to find [Ms Hasegawa]. I immediately followed [Y], saying words to the following effect: “I’m sorry [Y], it was an accident”. I recall that [Y] was quite upset and did not want to listen. Later, after [Y] had calmed down, I apologised again, and we cuddled in his bed until he fell asleep.
Under cross examination, Mr Hasegawa demonstrated Y lying on his left, Mr Hasegawa holding the book over his head, dropping the book, going to grab it and accidentally striking Y. It is difficult to see how a clear hand mark would have been inflicted on Y’s cheek in those circumstances. Further, Mr Hasegawa has given inconsistent accounts about this incident to various people, including to police. In a COPS Report dated early 2020, Mr Hasegawa was recorded as using words to the effect of “’[Y] hit out at me and I was swishing his hand away and accidentally hit him at the same time’” to describe the cause of Y’s injury, but was described in a subsequent COPS Report dated early 2020 as having advised police that “he was putting his son to bed and the son was on the bed with him, [Mr Hasegawa] was laying down with son [sic] on his left hand side. Said his son was swinging his arms around. [Mr Hasegawa] raised his arm up and it connected with his son” (these COPS Report formed part of Exhibit ICL2). Ms Hasegawa’s evidence is that he gave different account to her at the time. I do not accept Mr Hasegawa’s evidence about what occurred on this occasion. I am, however, unable to be comfortably satisfied that Mr Hasegawa deliberately struck Y on the cheek with his hand causing the red mark.
The “Country Q incident”
I also believe Ms Hasegawa’s evidence, rather than Mr Hasegawa’s, about an incident which occurred when the family travelled to Country Q.
In her affidavit, Ms Hasegawa deposed that Mr Hasegawa was in a “frantic and erratic” state as he was preparing for work the following day, and that X was not heeding his father’s requests to “’[s]top buggerising around’” and “’[s]top messing about’” (paragraph 405). When asked by Ms Hasegawa to take X’s young age into account and to “’[c]alm down’”, Mr Hasegawa responded “’I’m going to kill him. I’m going to fucking kill him. I’m going to crush his fucking little skull’” whilst making hand gestures which, to Ms Hasegawa, appeared to mimic “shaking and crushing [X’s] skull” (mother’s affidavit, paragraph 406). Ms Hasegawa deposed that, in response to Mr Hasegawa walking towards X, she moved to throw her body over X so as to shield him from his father, and that she and X then moved into, and locked the door of, the bathroom (mother’s affidavit, paragraph 407). Ms Hasegawa deposed that, despite Mr Hasegawa apologising a short time later, she slept on top of X that night (mother’s affidavit, paragraph 408). During cross examination, Ms Hasegawa was unable to recall whether she had taken any steps to calm X down, and inconsistencies were identified between paragraphs 406 and 407 of her affidavit and the information she provided to police about this incident when seeking a variation of the ADVO against Mr Hasegawa. Nonetheless, she readily refuted challenges to her evidence that Mr Hasegawa had stated he was going to “crush [X’s] fucking little skull”, stating “he did. He did” and then “he said it” when questioned again. She confirmed her affidavit evidence that Mr Hasegawa shook his hands whilst making this comment about X, and recalled that the event was “really scary” and that “in that moment”, she had formed the view that Mr Hasegawa would kill X.
Mr Hasegawa’s evidence about that incident is as follows:
Mr Hasegawa deposed that, as a result of the frustration brought about by X “significantly misbehaving”, refusing to go to bed and disrupting then six-month-old Y, he yelled words to the effect “’I am going to fucking kill him’” (paragraph 190). Mr Hasegawa refuted the suggestion that he had used words to the effect of “’crushing his fucking skull’”, and asserted that he had no intention to hurt X on this occasion (paragraph 190). He similarly denied that Ms Hasegawa had thrown her body in front of X, and instead contended that “[t]here was no physical intervention by [Ms Hasegawa] at all” (paragraph 190). No mention is made in Mr Hasegawa’s affidavit of Ms Hasegawa and X retreating to the bathroom. He deposed that he exited the room of his own volition in order to “calm down” (paragraph 190) and said under cross examination that he did not witness Ms Hasegawa and X retreating to the bathroom. Notably, the description of this event that Mr Hasegawa provided to the single expert and as recorded in the Family Report indicates that he observed Ms Hasegawa to react “as if his comment was a physical threat and [she] grabbed [X] and told [Mr Hasegawa] to go away” (paragraph 153). When cross examined about the discrepancies in the evidence about whether or not Ms Hasegawa physically intervened, Mr Hasegawa stated that his recollection of the events did not align with what had been recorded in the Family Report and advised “I would rely on my affidavit and the version that is in my affidavit”. He speculated that the questions the single expert had put to him about this incident were based on Ms Hasegawa’s affidavit and that perhaps she had incorrectly recorded his responses to her questions. During cross-examination, he was also vehement in his denials that he had used the words “’I’m going to crush his fucking little skull’” in response to X’s behaviour, although he said that it was “possible” his anger could have caused Ms Hasegawa to believe he could harm X, and that “she most likely was terrified” despite not appearing so. Both in his affidavit at paragraph 190 and during cross-examination, Mr Hasegawa maintained that X had been laughing throughout this incident, including when Mr Hasegawa was yelling at him, but when questioned by the ICL as to whether he maintained his belief, as recorded in the Family Report at paragraph 153, that X, as a four year old child, would not have understood Mr Hasegawa’s threat to kill him, Mr Hasegawa responded that “maybe that was not quite the right thing to say. Probably he would and could have some concept of that”.
During cross examination, he agreed that, although he had told the single expert that “he never had the opportunity to provide his account of the incidents to the Police” (Family Report, paragraph 159), this was untrue because he had been invited by the police to attend an interview, but refused to do so (the police record became Exhibit ICL2).
Reflecting upon Mr Hasegawa’s “threat” to kill X during the “Country Q incident” and the manner in which this “threat” was recalled to her by Ms Hasegawa during her interview, the single expert observed that “it does not appear that [Ms Hasegawa’s] fear and reaction to the incident have evolved over time”, and that the fear instilled in Ms Hasegawa and X by Mr Hasegawa’s behaviour on that day “is likely to have extended beyond the incident” (Family Report, paragraph 295).
I find that the “Country Q incident” occurred generally as Ms Hasegawa described it.
The children’s accounts of family violence
As recorded in the Family Report at paragraph 245, X gave the following account of family violence:
[X] said that “my Dad used to hurt me and stuff” and he said that [Mr Hasegawa] used to smack him and lie on him to make him do a timeout. He went on to say that [Mr Hasegawa] would hurt him when he lost his temper and explained that sometimes this involved him being “rough” with him. [X] said that [Mr Hasegawa] did not do the same things to [Y] and he could not account why that might have been. [X] said that he never felt worried that [Ms Hasegawa] would hurt him. [X] volunteered that [Mr Hasegawa] used to yell and scream at them but was unable to provide any context to this. He reported that he saw [Mr Hasegawa] hurt [Ms Hasegawa] and when asked further about this, he explained that sometimes he saw [Ms Hasegawa] and [Mr Hasegawa] screaming and each other and hitting each other. [X] then clarified that [Mr Hasegawa] was “worse” than [Ms Hasegawa] and then said that [Ms Hasegawa] never shouted at or hit [Mr Hasegawa]. It was unclear why he had earlier said that both parents were engaging in shouting and physical aggression.
In terms of the children’s attitudes towards their father, the single expert opined that the boys are probably remembering some of their experiences with Mr Hasegawa, but also what the mother has inadvertently communicated to the children about her feelings towards Mr Hasegawa and her concerns regarding their safety in his care. The single expert formed the view that the children “appeared to be aware” of their mother harbouring worries about them spending time with Mr Hasegawa, despite Ms Hasegawa advising that she had not told X and Y about her feelings surrounding time with their father (Family Report, paragraphs 275, 289, 49). In particular, both children were conscious of Ms Hasegawa’s preference that any time they spend with their father be supervised (Family Report, paragraphs 247, 269, 289-290), but during her oral evidence, the single expert opined that despite this awareness, the children did not present during the interview as having a “shopping list of complaints” about Mr Hasegawa, as might occur if the children had been “primed” by a parent. Y gave the following account of his memories of Mr Hasegawa in the lead up to and immediately following separation (Family Report, paragraph 264):
… his parents separated because they were fighting “and my Dad was sitting on my brother”. He went on to explain that he had seen [Mr Hasegawa] sitting on [X] on several occasions and [X] could not breath [sic]. [Y] said that [X] did not like [Mr Hasegawa] doing it and [Ms Hasegawa] thought it was “horrible”. He said that initially after the separation he did not spend any time with [Mr Hasegawa] because he was always at work or overseas.
Breaches of the ADVO
I have considered the ADVO which was made final in mid-2020, following an amendment in early 2020 to prevent Mr Hasegawa from attending certain locations, approaching Ms Hasegawa and the children and contacting them other than in certain circumstances. I have also taken into account that Mr Hasegawa breached the ADVO on two occasions, by forwarding a bill and another document to Ms Hasegawa by email and without further comment. I did not allow questions of Ms Hasegawa which implied that it was unreasonable for her to report these breaches to the police; it is difficult to imagine circumstances in which that proposition should be accepted. Fundamental to the protection order system is that a breach is a breach whether or not it constitutes a separate offence or is family violence in and of itself. This is important because behaviour which objectively appears “innocent” may well not be in the context of a history of family violence. Further, compliance with the boundaries imposed by family violence orders such as ADVOs is important for a victim to feel safe and to recover autonomy.
Ultimately, Mr Hasegawa was found guilty of breaching the ADVO, but no conviction was recorded. That does not mean, as Mr Hasegawa suggested to the single expert (Family Report, paragraph 159), that he was found not to have breached the ADVO – to the contrary. I have also taken into account that Mr Hasegawa attended two events for the boys in circumstances where there was an interim parenting order that he not contact or approach the boys or Ms Hasegawa, except in accordance with the orders. A photograph of Mr Hasegawa apparently hiding behind a tree at one of these events was tendered and marked as M14. Mr Hasegawa’s evidence that he was trying to keep out of sight of Ms Hasegawa and that this was one reason (in addition to what he had been told by his lawyers) as to why his attendance was appropriate, showed a lack of insight. As the single expert opined at paragraph 299 of the Family Report, these incidents:
… appeared to be ill timed and demonstrate a lack of capacity by [Mr Hasegawa] [to] appraise the situation and predict how [Ms Hasegawa] and the children might react and how [Ms Hasegawa’s] reaction might ultimately impact on the children.
The parenting orders in this matter need to provide clear boundaries and – as the single expert opined – to ensure that the boys do not have their activities and school events spoilt by concerns about their parents.
Was Mr Hasegawa financially controlling?
The email exchanges between the parents in September 2019 which formed part of what became Exhibit F7 were not suggestive of financially controlling behaviour on the part of Mr Hasegawa and I reject Ms Hasegawa’s evidence that Mr Hasegawa was financially controlling in a way which constitutes family violence. In fact, Mr Hasegawa’s email to Ms Hasegawa dated 3 September 2019 suggests to the contrary:
The point is that we have joint funds and neither of us has been that bothered up to now about what the other does because we are both relatively constrained/conservative and we know that neither is going to go out and do something crazy, like buy a boat or take themselves on a holiday. That’s how it should be and I don’t have a problem with that. I’m not trying to control your access or want/need to access gift money you’ve received. I’m not trying to tell you what to do with it or why. I am upset that you’re going to this length now and some of the underlying questioning of my motives. I’ve only ever done things with money for us and the family. Having said that, I did overreact yesterday and apologise profusely for that.
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.
Mr Hasegawa also deposed to having completed another course in late 2020, attending a parenting seminar in mid-2021 and completing two parenting workshop sessions in early 2024 (father’s affidavit, paragraph 176).
Notwithstanding the issues with his credibility, I find that Mr Hasegawa has done enough work, has sufficient supports in place, and his circumstances are now sufficiently less stressful such that the boys are safe spending time with him graduating to include overnight and block holiday time and with appropriate restraints and changeover arrangements. I accept the single expert’s recommendation that it is important to “limit parenting stress” for Mr Hasegawa (Family Report, paragraph 306). Relevant to matters of safety is that the boys are now of an age when everyday parenting is less stressful, when they can potentially have their own devices to contact their mother, and when they are likely to tell their mother if there are concerns – particularly given what the single expert found is their heightened consciousness about safety issues. I am satisfied, based on the evidence of Ms B and Ms F herself, that the relationship between Ms F and Mr Hasegawa is not accompanied by the same levels of stress as was that between Ms Hasegawa and Mr Hasegawa. I am also satisfied that, with appropriate restraints and changeover arrangements, Ms Hasegawa is safe from family violence.
X’s and Y’s views
X and Y were last spoken to by the single expert on 14 August 2023. I have no updated evidence about their views, other than what the parents have included in their respective trial affidavits. Mr Hasegawa deposed that, during a conversation at the conclusion of a visit on 19 November 2023, he was advised by the children that they did not want him to come to their sports games because they were concerned that Ms Hasegawa would stop them from playing sport as a result (paragraph 151). He also deposed that on 25 August 2024, when he and the children spent more time than usual together for an early Father’s Day outing, both X and Y chose experiences that they would like to share with Mr Hasegawa from “a deck of cards with activity ideas for children to do with their dads”, and made selections which required “either a long time or significant travel”, such as attending a theme park (paragraph 115). He also deposed that this Father’s Day outing, having occurred immediately after picking the children up from an extracurricular camp, involved going “much further afield than would otherwise have been possible during a visit”, and that the children had requested that they go on such an outing again (paragraph 115). In her trial affidavit Ms Hasegawa indicated that she has observed both children to be worried in the lead up to spending time with their father (paragraphs 104, 106) and that in December 2023 Y had expressed a view that he did not want to live with Mr Hasegawa (paragraph 125) and in August 2024, X strongly expressed his view that he neither wanted to live with Mr Hasegawa nor increase the time he spent with him (paragraphs 126 and 128).
To the single expert X said the following (Family Report, paragraphs 241-243):
[X] explained that he spends time with [Mr Hasegawa] between 9.30am and 3.30pm each alternate Sunday. He said that the time is kind of boring and said that they do not do many activities. [X] was asked how [Mr Hasegawa] could make the time better and he said “Dad’s kind of trying but kind of also just sitting there”. He said that [Mr Hasegawa] has [games] and said that he is getting sick of playing [one of the games]. [X] said that he does not really know what could make time with [Mr Hasegawa] better.
[X] said that he thought it was “bad” when the time with [Mr Hasegawa] changed from three to six hours but that he liked the time being changed to [Mr Hasegawa’s] house because he was getting bored at the park.
[X] spoke about attending parties sometimes when he is with [Mr Hasegawa] and said that he would not want to miss the party and does not mind that it is [Mr Hasegawa] dropping him to the party.
As recorded in the Family Report at paragraphs 247-249, X expressed his views about the current and potential parenting arrangements as follows:
[X] rated the current arrangement a seven out of ten (with ten being the upper and most positive rating and zero being most negative). When asked about his rating, he said “I like it how it is”. [X] was not able to think about a spend time arrangement that would be an eight out of ten. He then commented that the current arrangement is actually a nine out of ten. When asked about his thoughts on reducing the time with [Mr Hasegawa] back to three hours, [X] said “I think it is good how it is”. [X] rated the time becoming unsupervised as a four out of ten and commented that if there is no supervision, [Mr Hasegawa] “might do something”. He confirmed that [Mr Hasegawa’s] current behaviour is suitable. [X] added that [Ms Hasegawa] really does not want them to spend unsupervised time with [Mr Hasegawa] because she does not want them to get hurt.
[X] said that he would not want to spend overnight time with [Mr Hasegawa] even if it was supervised and said this was because “I just would not want to” and said he likes to sleep at his own house. He said that he does not know if he would ever feel OK about overnight time. [X] rated an equal shared care week about arrangement as a zero out of ten and firmly said “no”. His explanation for his view was “because I want to stay at my own house”.
[X] indicated a preference to spend some time with [Mr Hasegawa] compared to no time. He said that he is not sure on [Y’s] views about spending time with [Mr Hasegawa]. [X] said that he would feel annoyed if it was arranged that he was to spend unsupervised overnight time with [Mr Hasegawa] but said he would comply.
As recorded in paragraphs 265-269 and 275 of the Family Report, Y expressed his views about the current and potential parenting arrangements as follows:
[Y] said at present he and [X] spend every second Sunday with [Mr Hasegawa]. He said that they saw [Mr Hasegawa] on the day before the report interviews and described that they went to a café. He said that “Uncle [Mr S]” was the supervisor and described him as “really mean”. [Y] went on to explain that the family were mean because no one got his great grandmother a sandwich.
[Y] said that the supervisor is usually “my grandfather” who he said they call ‘Granddad’. He went on to say he prefers when [Mr L] is the supervisor “because he actually does what he is supposed to do” and explained that he stays with them the whole time. When asked to explain further, he said that [Mr L] stays closer to he and [X] during the visits and is always “in earshot” and the same room, whereas the other supervisors tend to do “random stuff”. [Y] said that [Mr Hasegawa’s] behaviour is the same no matter who the supervisor is.
[Y] complained that [Mr Hasegawa] “never takes us out”. When asked about the most enjoyable place they have been he said that they have twice been to the park. He conceded that they had also been to a café. [Y] also added that they had been to the aquarium and said he would like to go out places and said he would like to go to the zoo and “do more fun stuff”. [Y] said that [Mr Hasegawa] makes him do too much craft when they are together. He said that [Mr Hasegawa] does not have any games that he likes to play. [Y] commented that [Mr Hasegawa] has told him that he can bring some of his own toys to the visits but said that was a “bad” idea, although he said he did not know why it was a bad idea.
[Y] said that he does not want to spend unsupervised time with [Mr Hasegawa] however, he could not articulate why this was the case. He was not able to comment on the advantages or disadvantages of supervision. [Y] said that having a sleep over at [Mr Hasegawa’s] house would be “bad” and when asked why that would be, he said “I don’t know” and when he was encouraged to take some time to reflect on why it might be bad he then said “then he might want us to live with him”. [Y] was asked how he would feel about spending overnight time with [Mr Hasegawa] if there was reassurance that he would continue to live primarily with [Ms Hasegawa] and he said that he still would not want to spend overnight time.
[Y] indicated that [Ms Hasegawa] thinks that supervised time is “good” but said that he does not know why that is.
…
[Y] said that [Ms Hasegawa] has said that she does not want him and [X] going to [Mr Hasegawa’s] house. He said that he is pretty sure that [Ms Hasegawa] has [sic] “has to” let them spend time with [Mr Hasegawa] but that he does not think that she wants them to see [Mr Hasegawa]. [Y] said that it would be good if he could spend no time with [Mr Hasegawa] and said that he did not think that he would feel any regret if this occurred.
Both boys spoke positively about Ms F, with the Family Report writer recording at paragraphs 253 and 270 of the Family Report:
[X] spoke in a positive tone about [Ms F] and said that she is “OK”. When asked for [X’s] view on [Ms F] being a supervisor he said he did not know.
…
[Y] spoke positively about [Ms F] and described her as “nice” and said that she helps out and that it is good that she is always there. [Y] was asked what he would think if [Ms F] was the supervisor and he said “kind of good”.
The single expert also recorded that, when discussing Ms Hasegawa’s speculation that he and Y may have to live “some of the time” with Mr Hasegawa, X commented that he did not want such an arrangement (Family Report, paragraph 234).
Of his father, Y said, as recorded in paragraphs 271-273 of the Family Report:
[Y] was asked what [Mr Hasegawa] is good at and he said “I don’t know. Not much” and then said “I don’t want to see him” and when asked for his reasoning he said “I just don’t like being at his house”. He said that he liked it more when the supervised time was not at [Mr Hasegawa’s] home. Of [Mr Hasegawa], [Y] said “I don’t like him” and said that they never have fun when they see him. He said that he thinks that six hours is too much time and thirty minutes would be better if he has to spend time with [Mr Hasegawa].
[Y] described [Mr Hasegawa] as “mean and horrible” and said “I don’t like him”. He was asked if he was “mean and horrible” when they lived together or at present and he said that [Mr Hasegawa] “acts nice” during the supervised visits but is not nice.
[Y] said that [Ms Hasegawa] has been in a relationship with '[Mr R]’ for the last couple of months but said that he has not met him.
The single expert highlighted the differences between the children’s views about Mr Hasegawa on the one hand, and the warm interactions between them and Mr Hasegawa during the observation session on the other (Family Report paragraphs 286, 290), and added at paragraph 317 of the Family Report:
… [X] said that he would like the current arrangements to remain as they are. [Y] said that he had a preference to spend no time with [Mr Hasegawa]. However, the children’s views were contrary to the interactions that they have been observed to have with [Mr Hasegawa]. Furthermore, the children appear to be aware of [Ms Hasegawa’s] views about their time with [Mr Hasegawa] and they appear to understand that [Ms Hasegawa] thinks that they might be at risk of harm from [Mr Hasegawa]. In the context of [Ms Hasegawa’s] fears about [Mr Hasegawa] the children do not appear able to form a view independent of [Mr Hasegawa] [presumably this is a typographical error, and the reference should be to Ms Hasegawa]. It is recommended that the Court give some consideration to the children’s general views and do not expect them to adjust to orders that are too significantly different to their views, but that significant weight cannot be placed on the children’s views.
Moreover, with respect to Y, it was noted that his negative answers to questions about Mr Hasegawa and the prospect of spending time with him were lacking detail, even when he was prompted by the single expert to elaborate upon his initial responses (Family Report, paragraphs 268, 271, 290). During oral evidence, the single expert agreed with the proposition that the children are likely of the view that their time with Mr Hasegawa had been supervised because of a “safety issue”. While the single expert noted that the ability of the children to hold an informed view about their father may be impacted by the fact that, at the time of the interview, they had not spent unsupervised time with Mr Hasegawa for a substantial period, she maintained that the children, being cognisant of and wanting to look after their mother’s anxiety and potentially not having the language to articulate their concerns around safety, “wouldn’t have wanted to be not consistent with what they thought was the right thing to say”. The single expert observed that both children were cognisant of Ms Hasegawa’s worries about them spending time with their father and, in particular, concluded that X’s concern that Mr Hasegawa could harm him during unsupervised time, having been informed by his mother’s views, meant that “the Court cannot be confident that [X’s] articulated comments are based on his experience of [Mr Hasegawa] or representative of his actual level of fear” (Family Report, paragraph 289). Accordingly, with respect to the weight to be attached to the children’s views, the single expert ultimately concluded at paragraph 291 that:
… the Court can only place limited weight on the children’s views on interview … the children do not have psychological permission from [Ms Hasegawa] to progress their relationship with [Mr Hasegawa] and their views did not appear to be independent of the views of [Ms Hasegawa].
I accept that evidence and will make orders for time to progress beyond the current arrangements, notwithstanding X and Y’s views against such a progression. Nonetheless, their views are firmly against a substantially shared time arrangement, and form part of the reason why I do not progress time as far as Mr Hasegawa seeks.
X’s and Y’s needs
X and Y are both doing well at school and appear to be thriving. That is a credit to their mother who, notwithstanding her anxiety, has patently parented them well.
The single expert opined that there had been nothing in the assessment to suggest that either parent would not be able to cater to the children’s “basic needs” (Family Report, paragraph 292). With respect to X, the single expert observed that he was at an “age and stage of development” in which his independence will grow, his priorities will increasingly shift to his social life, studies and extra-curricular pursuits, and he will be faced with the reality of high school next year (Family Report, paragraph 292). Conversely, Y’s current stage of development entails “developing a sense of his interests and strengths”, beginning to engage with experiences beyond his family unit and not yet considering the implications of his choices (Family Report, paragraph 292). With respect to Mr Hasegawa’s wish, expressed during cross examination, that he eventually talk to the children about his past behaviour, the single expert gave oral evidence that such an acknowledgement and acceptance of responsibility “is going to be a very significant factor in the establishment of a really close and trusting and safe relationship for the children with dad”, and observed that, although such a process could not be facilitated through D Program, engagement with family therapy could be a means by which conversations of this nature could be approached. The single expert also opined that, had the children participated in D Program following the release of the Family Report, they would have had the opportunity to develop skills to address and process memories of family violence that could arise upon spending time with Mr Hasegawa and to engage with experts who could “therapeutically move the children forward in a healthy manner”.
Benefit to X and Y of a relationship with their parents and others
The single expert opined at paragraph 330 of the Family Report that:
… despite having reservations about the children spending time with [Mr Hasegawa], the children have been attending time with [Mr Hasegawa] on a regular basis and appear to have adjusted initially to supervised time and then subsequently to the change to family supervisors and a longer period of time.
Significantly, the single expert opined that “if the children’s capacity to adjust to unsupervised time with [Mr Hasegawa] and separation from [Ms Hasegawa] is overextended then it is more likely that the children will become estranged from [Mr Hasegawa] in the longer term.” (Family Report, paragraph 309). I accept that evidence.
Benefit to X and Y of relationships with their father and extended families
The arrangements which I will order enable X and Y to further develop their relationship with their father in a more “normal” setting and will ensure that they can benefit from a relationship with their father. There is a lot of work to be done to improve those relationships, and I am confident that Mr Hasegawa is committed to doing that work and has the appropriate support in place. It is not necessary for there to be a substantially shared arrangement nor time for half of the school holidays for X and Y to benefit from their relationships with their father. Indeed, as the single expert opined, it may damage those relationships if time progresses too quickly or too far.
It is also of benefit to X and Y to have relationships with their extended families. Their paternal grandfather Mr M has shown his commitment to his grandchildren and his son by travelling from Adelaide to supervise the boys’ time with Mr Hasegawa. An email which he sent to Ms Hasegawa, copied to her mother, on 3 March 2022 (Exhibit M7) was unhelpful, particularly in its reference to literature on parental alienation. It was clear that Mr Hasegawa had not told his father about some of the conduct he had engaged in towards Ms Hasegawa and towards X. Understandably, Mr M was defensive and protective of his son. Nothing turns on this, except that it is important X and Y are not made to feel conflicted by things said to them by members of either of their extended families. There is nothing to suggest that limiting the boys’ time with their father to time in the greater Sydney region until the end of 2026 will prevent them from developing their relationships with extended family.
Parental capacity
There is no issue that Ms Hasegawa has excellent parenting capacity. To his credit, Mr Hasegawa gave evidence that she is an “excellent mum”. The single expert opined at paragraphs 328 and 329 of the Family Report:
It would appear that following the parental separation [Ms Hasegawa] has been proficient in providing for the needs of the children. The children appear to be well engaged in their education, have developed interests and strengths in extra-curricular activities and are doing well socially...
[Ms Hasegawa] demonstrated a capacity to attend to the children’s emotional needs by engaging [X] in counselling and taking him to numerous sessions with [Ms T]…
I was, however, troubled by Ms Hasegawa’s evidence that – notwithstanding the clear recommendation in the Family Report and repeated requests from Mr Hasegawa through his solicitors (that correspondence was tendered and marked F3) – she had not taken steps to enrol X and Y in the D Program. Her evidence about why she had not done so was that she did not want them to miss school, that it was not convenient, and that the program had no fixed end date. To her credit, she has now consented to an order requiring the children’s participation in that program.
Mr Hasegawa is largely untested as a parent outside of the context of daytime, supervised time. Nonetheless, the single expert opined that there are some positive indicators of his capacity, including:
(1)At paragraphs 333-335 of the Family Report:
[Mr Hasegawa] has had limited opportunity since the parental separation to provide for the needs of the children. However, the supervision notes appear to suggest that [Mr Hasegawa] has arranged for the children to engage in a variety of activities aimed at their individual interests and age and stage of development. [Mr Hasegawa] appears to have also provided the children with suitable food and supervised them, for example with crossing the road. [Mr Hasegawa] has demonstrated some capacity to attend to the children’s needs by supporting their adjustment to spending time with him and changes to the supervision.
[Mr Hasegawa] appears to have made an effort to stay in contact with [X] and [Y’s] teachers in order to obtain information about their progress at school.
[Mr Hasegawa] appears to have historically had significant difficulties attending to the children’s behavioural needs. To [Mr Hasegawa’s] credit he has completed a collection of parenting courses which are likely to have some impact on his knowledge and skills to deal with their behaviour. Supervised time only provides a limited opportunity for [Mr Hasegawa] to demonstrate an improved capacity to manage any challenging behaviour exhibited by the children. However, there appear to be some examples of [Mr Hasegawa] managing behaviour without him becoming dysregulated, such as the children competing for his attention, [Y] kicking [Mr M] and the children fighting in the car whilst [Mr Hasegawa] was driving.
(2)Supervision reports which “suggest that both [X] and [Y] have been open to and have enjoyed spending time with [Mr Hasegawa] throughout the duration of the supervised time” (Family Report, paragraph 286). Some of those supervision reports became Exhibit F5. The following were examples of some of the consistently positive observations of the emotional connection between the boys and their father that were recorded:
·On 13 September 2020, which was the first time the children had seen Mr Hasegawa since March of that year:
The boys smiled as they saw [Mr Hasegawa] and tried to let go of my hands. I asked them to wait until we reached the grass and they did…the boys were animated: they ran to him, hugged him and started talking over each other.
·Again on 13 September 2020:
The children hugged and kissed their father goodbye and [Mr Hasegawa] reciprocated. The children were not visibly upset as we departed however [X] looked back at [Mr Hasegawa] a few times and waved goodbye, and [Mr Hasegawa] waved to [X].
· On 11 October 2020:
For the last few minutes, [Y] giggled as [Mr Hasegawa] tickled him on the tummy and they kissed and snuggled. Then [Mr Hasegawa] hugged [X] and said he missed him and they said they loved each other…
(3)I was also referred to a police record made in early 2020 (Exhibit F9) which recorded “[t]he children did not appear to be scared in any way of the POI. The children were cuddling the POI and playing in the driveway when police arrived.” In parenting matters, caution must be exercised in attaching any weight to records of untested opinions formed by unnamed police officers (or anyone else who is a casual observer of the situation, for that matter). I do not draw anything from this record.
Mr Hasegawa gave thoughtful oral evidence about his desire to talk with X and Y about his past behaviour, and the need for him to have advice and assistance to do that. That evidence is positive for his parenting capacity.
I find that Mr Hasegawa has good enough parenting capacity to appropriately parent the boys in the time arrangements which I will order.
Other relevant matters
One of the matters I have considered is the risk of further litigation in this matter. It is virtually axiomatic that it would be in X’s and Y’s best interests to reduce the risk of further litigation. If I do not make orders for at least some block holiday time, further litigation may occur in circumstances where Mr Hasegawa may believe the children want that time, but where Ms Hasegawa will not agree to it. The risk of further litigation is a matter I have taken into account in my decision to make orders for some block holiday time, notwithstanding the evidence of the single expert referred to below.
ORDERS TO BE MADE OTHER THAN BY CONSENT
Recommendations of the single expert as to parenting orders
The parents and the ICL have adopted by consent some of the recommendations of the single expert – including for Ms Hasegawa to have sole decision-making authority in respect of major long-term issues for X and Y. It is to the father’s credit that he conceded that position at the conclusion of the evidence.
So far as the matters of controversy between them are concerned, the single expert’s recommendations are as follows:
It is not recommended that the children spend long periods of time with [Mr Hasegawa]…or that they spend significant periods of midweek time when the pressure of bedtime routine, activities and homework is highest and children’s coping tends to be more strained (Family Report, paragraph 306) ...
It is likely to support the children’s adjustment and also [Ms Hasegawa’s] adjustment (which will impact on the children’s adjustment), if the time initially transition to supervision by [Ms F] for three months and then progressively increase in time to include time from Saturday afternoon until Sunday night for three months and then Friday afternoon, with pick up to occur at school, until Sunday afternoon for three months and thereafter from Friday afternoon until Monday morning (Family Report, paragraph 309) ...
It is recommended that the parent with whom the children is [sic] residing take them to all sporting/school/social events whilst in their care and that the other parent be restrained from attending unless both parents agree otherwise in writing (Family Report, paragraph 310) ...
Both [X] and [Y] would [be] likely to be highly distressed if they were required to spend significant periods of time away from [Ms Hasegawa]….It is my clinical judgement that the children could tolerate a separation from [Ms Hasegawa] for a weekend but would find the adjustment to living in a substantial and significant time arrangement too difficult (Family Report, paragraph 322).
It is recommended that the Court give consideration to progressing the children’s time with [Mr Hasegawa] to unsupervised time with very clear and strict orders around time, changeovers, communication and attendance at school and extra-curricular events (Family Report, paragraph 338) ...
Spend time orders
It is now nearly a year since the date of the Family Report. Time has not progressed in the way contemplated by the single expert in that Report. Given the findings I have made above and the single expert’s opinion, I am satisfied that school term time with Mr Hasegawa should not progress beyond three nights. I have carefully considered the benefits of X and Y returning home on Sunday night (as Ms Hasegawa sought). This has the benefits that Mr Hasegawa will not have to cope with the strain of Sunday nights and Monday mornings, and that Ms Hasegawa will likely be less anxious if the boys are back with her on Sunday night. I have weighed that against the benefits of changeovers occurring to and from school so as to avoid contact between the parents, as well as the benefits to the boys of having their father drop them at school one morning a fortnight. On balance, I have decided time should progress to three nights, with a return on Monday morning, but not until the commencement of the Term 3 2025 school holidays, when X will be well and truly settled in high school and the children and Ms Hasegawa will have had the opportunity to adapt to the overnight time arrangements.
I have made orders that Ms F be substantially present for the first new stage of the orders. This is because I am satisfied that that measure will ease Ms Hasegawa’s anxiety while she and the children adjust to the new arrangements. If Ms F is not available, the parents will need to agree on alternate supervision.
The single expert opined that domestic travel, for example, to see the paternal extended family in Adelaide, should not occur “for quite some time”. When asked to elaborate on what she meant by this statement, she opined that the amount of time needed was influenced by Mr Hasegawa’s capacity to show insight into how comfortable the children were spending time with him, but that such travel should not take place for at least “the next two years”, on the basis that the children required time to become accustomed to being with their father and having positive experiences with him, and also that the children and Ms Hasegawa would experience anxiety as a result of their geographical distance and concern regarding the prospect of “what if something goes wrong?”. For these reasons, Mr Hasegawa will need to exercise time in the greater Sydney region until the end of 2026. It is reasonable that the geographical restriction is lifted by the end of 2026, and the orders I have made provide for that.
Mr Hasegawa sought that time on a Friday commence at the start of school, rather than at the conclusion so that, if one of the boys became unwell on a Friday and had to be collected from school, that would be done by him so as to avoid the disruption of a return to Ms Hasegawa’s care upon being picked up then entry into Mr Hasegawa’s care at 3.00 pm. I recognise this benefit under such an arrangement, as well as the increased opportunities for Mr Hasegawa to attend school events which occur during the day on Friday. I have made orders accordingly.
I am satisfied that the spend time arrangement which Mr Hasegawa seeks- namely, that time progress to five nights a fortnight during school terms, is not in the children’s best interests in the circumstances as they are now and appear likely to be for the foreseeable future. A substantially shared care arrangement such as this would be to go too far because:
(1)It would be a very significant change to their current arrangements;
(2)Mr Hasegawa’s parental capacity during a busy school week is untested and there are reasons to expect that he may come under parenting stress and may react inappropriately;
(3)It would create significant additional anxiety in Ms Hasegawa – with consequences for the children;
(4)It is significantly more time than the children have indicated they would want or would tolerate;
(5)It deprives the children of stability and time with their mother – the parent best able to meet their needs;
(6)It requires a degree of trust, cooperation and goodwill between the parents to work. These are firmly absent and this is not likely to change;
(7)The children will benefit from a meaningful relationship with Mr Hasegawa and his extended family, notwithstanding the more limited time they will have pursuant to these orders;
(8)Extending the time too far may damage the children’s relationship with their father;
For some of these reasons, such an arrangement is not recommended by the single expert.
Holiday time orders
Mr Hasegawa sought holiday orders which moved to week about at the end of next year, and half school holidays from 2027. Ms Hasegawa sought orders which provided for no block holiday time other than the regular weekend time. The ICL sought orders for block holiday time of five nights only.
In oral evidence, the single expert was very cautious in her recommendation about holiday time, and expressed a preference for the weekend time only to continue through the school holidays. She expressed concern about how the children would cope with being away from their mother for a longer period of time, and also the risk that, if time is pushed too far, the children’s relationship with their father may be damaged. There is also the impact of Ms Hasegawa’s anxiety not only for herself, but upon the children, and I accept that her anxiety is likely to be greater the longer the children are with Mr Hasegawa. The making of final orders which do not provide for any block holiday time notwithstanding the children are eight and 12 risks the matter returning to Court. Balancing up all of these factors, I have decided to make orders for holiday time in accordance with those sought by the ICL. That holiday time will not start until the 2025/2026 summer holiday, providing time for the children and Ms Hasegawa to adjust.
Ms Hasegawa and the ICL sought orders that the children’s Christmas time with their father occur during the day on Christmas Eve. I made interim orders to that effect for this year. Mr Hasegawa sought orders for alternating Christmas’s thereafter. Ms Hasegawa gave brief evidence about spending Christmas Day with extended family each year (mother’s affidavit, paragraphs 147-148). I am not satisfied that the children would cope with spending an entire Christmas period away from their mother. They have never done so before and would undoubtedly miss her and their usual Christmas traditions. Without an alternate proposal available, I make the Christmas orders as sought by the ICL.
I have made the other special occasion orders sought by the mother but have made those reciprocal for the father. It is in the boys’ best interests that they have time with both parents on those special occasions. I have not made the order sought by the mother in respect of Easter because, in some years at least, that would interfere unnecessarily with the children’s time with the father. The children will spend Easter with the parent who they would otherwise be with under these orders.
Attendance at school and other events
The single expert was clear that the children should not be subjected to the worry of having both parents present at events. They have experienced such worry on at least two previous occasions.
I make orders therefore that only the parent who has the children in their care at the relevant time may attend such events. This will mean that there is little scope for Mr Hasegawa to attend school events – other than those that may occur on the Friday of the weekend when the children are with him. In those circumstances, I will make orders that Mr Hasegawa may, at the commencement of each school term, nominate a school event which he will attend, and advise Ms Hasegawa accordingly. She will then be restrained from attending that event, unless there is agreement in writing that she may so attend. The nominated events are not to include any Mother’s Day celebration and are to include the main end-of-year celebration for either child only once every two years. It is appropriate that both parents have the opportunity to attend that celebration in alternate years.
Overseas travel
It is plainly in the children’s best interests for Ms Hasegawa to be able to take them on overseas trips when they are living with her pursuant to these orders. Mr Hasegawa sought mutual orders, but I am not satisfied that such orders are in the children’s best interests – at least until Ms Hasegawa’s anxiety settles and Mr Hasegawa and the children have significantly more experience of spending time together close to home. As set out above, the single expert expressed concern about the children even travelling to Adelaide with Mr Hasegawa before the passage of at least two years. Given I am not making mutual overseas travel orders, I have limited the orders for Ms Hasegawa to travel overseas to times when the children would not otherwise be with Mr Hasegawa, unless he agrees to her travelling during such times. I am concerned that otherwise Mr Hasegawa’s block holiday time with the children may be inappropriately disrupted.
Ms Hasegawa has sole parental responsibility for the children, and it is in their best interests to limit the necessity for interactions between the parents. In those circumstances, Ms Hasegawa will be permitted to apply for the children to have passports without Mr Hasegawa’s consent.
ICL’s costs
The ICL sought an order that the parents share equally in the costs of the ICL, on the basis that Mr Hasegawa has made an initial contribution of $1,650. This order was not opposed by the mother or the father. The ICL filed a Costs Notice on 14 November 2024 and that shows costs incurred of $22,497.70. In circumstances where Mr Hasegawa will have spent $347,902.84 in legal costs and Ms Hasegawa $275,175.76 in legal costs in respect of these proceedings, and where neither party has been in receipt of a grant of legal aid, it is appropriate for me to make the relatively modest costs order sought by the ICL. I do not have evidence before me which enables me to be satisfied that either parent will suffer financial hardship if they had to bear a proportion of the costs of the ICL. The order I make will enable that matter, as well as the timing of any payment, to be considered by Legal Aid NSW on application.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 17 December 2024
ANNEXURE A
Annexure omitted to comply with Part XIVB of the FamilyLaw Act1975 (Cth)
0