Kaneko & Kaneko (No 2) [2025] FedCFamC1F 296 (8 May 2025)

1. That the father shall have sole parental responsibility for decision making of major long term decisions for the children X born 2016, Y born 2018 and Z born 2021 ("the children").
2. Notwithstanding Order 1 the children:

(a) Shall reside in the Town C area;

(b) Shall attend school as follows:

(i) X and Y shall attend D School; and

(ii) Z shall attend E Early Learning Centre and thereafter be enrolled in and attend D School.

1. That in the event of a medical emergency or significant illness of the children or either of them, the father shall forthwith advise the mother of the following:

(a) The nature of the medical emergency or significant illness;

(b) The name, address and contact details of the health care practitioner or hospital that is treating the child;

(c) Forward a copy of any discharge summary, referral letter or report that is received by the attending parent; and

(d) Details of the:

(i) Diagnosis.

(ii) Treatment rendered.

(iii) Prognosis.

1. In the event that the father intends to make a long-term decision in relation to the children or any of them he will provide the mother with as much notice as possible of the decision and any relevant information through the agreed parenting application, and will take any feedback she may provide into consideration in making this decision.
2. The father will do all things necessary to ensure that the children attend childcare, preschool or school on any days that the children are required to attend. In the event that the children are unable to attend, or are late to school the father will send an email to the ICL providing a reason for the absence or lateness.
3. The father will provide the ICL with an authority to speak directly with any childcare, preschool or school attended by the children.
4. NOTING that the children have already been enrolled to engage in therapy with Ms F from G Mental Health Service (the "family counsellor"), the father will do all things necessary to authorise the ICL to speak with the family counsellor.

1. The mother will do all things necessary to forthwith attend and complete a 6 month residential program with H Drug and Alcohol Centre.
2. The mother will provide an authority to H Drug and Alcohol Centre to provide a notification to the ICL upon completion of the program, or in the event that the mother leaves the program prior to completion either voluntarily or at the request of the Centre.

1. That the children shall live with the father.
2. That upon the mother completing the first 8 weeks of the residential program at H Drug and Alcohol Centre and providing a clean urinalysis test and every 4 weeks thereafter the mother will spend up to 4 hours supervised by an agency.
3. That upon the mother completing the residential program at H Drug and Alcohol Centre and providing a negative Hair Follicle Test for Methamphetamines and Amphetamines in accordance with Orders 18 to 22 below, the children shall spend supervised time with the mother as follows:

(a) One the first Saturday of each month for up to 4 hours at such times as can be facilitated by the supervision agency.

1. That for the purpose of Order 11 herein, J Family Services is to supervise the children's time with the mother.
2. That within 14 days of the date of these Orders, the mother and father shall contact the supervision agency and do all things necessary to apply and complete all necessary intake directions as required to utilise the supervision agency and thereafter comply with all reasonable directions of the supervision agency.
3. In the event that the supervision agency is only able to offer supervised time at times that differ from the Saturday proposed above, then the time under supervision shall occur at the times which can be provided by the supervision service.
4. That the mother shall meet all costs of the supervision agency.

1. Upon admission the mother will direct H Drug and Alcohol Centre to provide copies of all drug testing results to the ICL.
2. That upon completion of the residential program at H Drug and Alcohol Centre, or at whatever point at which the mother leaves the program, the mother shall attend upon an appointment and provide a hair sample, or samples as required, (of hair not shorter than 2.6cm in length) for hair collection at a K Service clinic or their nominee.
3. The hair sample testing that shall be undertaken is chain of custody testing for:

1. The mother is to ensure that the appointment is made to attend for hair collection to be conducted by a qualified and certified collector under chain of custody procedure.
2. Upon attendance at the hair tester for testing, the mother is to:

(a) provide a copy of these Orders to the laboratory;

(b) provide their current Australian Driver's License with photo identification confirming their identity; and

(c) obtain a receipt from the laboratory confirming sighting of these Orders and of their current Australian Driver's License with photo identifications.

1. The mother is to authorise and direct the hair tester, K Service clinic or their nominee, to forward the results of such testing directly to the father and Independent Children's Lawyer, and these Orders shall constitute an Order of the Court authorising K Service or their nominee to forward such results as soon as reasonably practicable after they issue.
2. The ICL will make arrangements with the testing agency to make payment directly to the agency for the mother's testing pursuant to Orders 12-16.
3. Within 10 days of receiving a request from the Independent Children's Lawyer, the father shall attend upon an appointment and provide a hair sample, or samples as required, (of hair not shorter than 2.6cm in length) for hair collection at a K Service clinic or their nominee.
4. The hair sample testing that shall be undertaken is chain of custody testing for:

1. The father is to ensure that the appointment is made to attend for hair collection to be conducted by a qualified and certified collector under chain of custody procedure.
2. Upon attendance at the hair tester for testing, the father is to:

(a) provide a copy of these Orders to the laboratory;

(b) provide their current Australian Driver's License with photo identification confirming their identity; and

(c) obtain a receipt from the laboratory confirming sighting of these Orders and of their current Australian Driver's License with photo identifications.

1. The ICL will make arrangements with the testing agency to make payment directly to the agency for the half of the father's testing pursuant to Orders 18-21.
2. The father is to authorise and direct the hair tester, K Service clinic or their nominee, to forward the results of such testing directly to the solicitor of the requesting party, and these Orders shall constitute an Order of the Court authorising K Service or their nominee to forward such results as soon as reasonably practicable after they issue.
3. Within 24 hours of receipt of the results the father shall provide a copy of the test results to the Independent Children's Lawyer.

1. The father will do all things to ensure that the children attend all scheduled appointments with the family counsellor and comply with any reasonable requests for him to attend any sessions.

1. The father will authorise the family counsellor to make contact with the mother and the ICL at her discretion to assist with the therapeutic process.

1. That the parties communicate via the Parenting Application known as AppClose or another agreed application, and the communication shall relate to the children only.

1. That each parent be restrained by injunction from the following:

(a) discussing any allegations of risk, or the mental health of the parties, in the presence or hearing of the child;

(b) taking possession of the child other than in accordance with these Orders;

(c) denigrating the other parent or members of the other parent's family in the presence or hearing of the child and the parents shall do all acts and things reasonably necessary to prevent any other person doing so;

(d) exposing the child to excessive conflict or violent behaviour, including physical and verbal abuse whilst the child is in their presence or care;

(e) consuming alcohol above the legal driving limit at all times whilst the children or either of them are in their care;

(f) consuming or being under the influence of illicit substances;

(g) discussing these proceedings or the contents of any documents prepared or exchanged in the course of the parenting matter in the presence or hearing of the child; and

(h) physically discipling the children or permitting any other person to do so.

1. That the father be restrained by injunction from removing X and Y from their current primary school until their completion of year 6 without further Order of the Court.
2. That upon Z's enrolment in D School, in accordance with these Orders, the father is restrained by injunction from removing the child until such time as she completes year 6 without further Order of the Court.

1. That the mother shall be at liberty to provide to the children, cards and gifts for Christmas and their birthdays and for that purpose:

(a) the mother may send cards and gifts by post to the father's nominated address or PO Box as he may advise.

1. That the father shall forward to the mother's nominated email address on two occasions per year, a copy of the children's school reports.

1. The ICL shall have liberty to relist the matter on two days' notice to the parties and the Court.
2. In March 2026 the parties will attend upon an FDRC to discuss the arrangements for the children moving forward.
3. The matter be relisted for Directions in April 2026.

1. It is NOTED THAT the ICL has obtained funding to assist the family with the purchasing of school uniforms and school shoes and will make arrangements directly with the school to ensure the children's school attendance is not inhibited by the lack of these provisions.

1. NOTING that notwithstanding that B, born 2010, ("B") is not a subject child in these proceedings, due to the importance of maintaining the family unit, the mother has provided the ICL with an authority to speak with and obtain information from any educational, medical or therapeutic treatment provider involved with B.

1. It is NOTED that the father agrees that he will do all things within his power to facilitate B attending upon the family counsellor at such times and dates as requested by the family counsellor.

1. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and X born 2016, Y born 2018 and Z born 2021 ("the children") attend upon a Court Child Expert (practicing under their appointment as a Family Consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children's Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released no later than February 2026 and that the family report address:

(a) any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the Court should place on those views;

(b) the impact upon the child and upon the child's relationship with the mother if the Court made orders as sought by the father;

(c) the impact upon the child and upon the child's relationship with the father if the Court made orders as sought by the mother;

(d) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.

1. Not later than 4.00 pm on 13 May 2025 [7 days after Orders] the parties must provide their contact telephone numbers and email addresses to ...@....
2. Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
3. The parties and the children attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
4. The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:

(a) Any section 67ZBD or 67ZBE, or subpoena material produced in these proceedings.

(b) Any other relevant material presently before the Court in admissible form.

1. Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party's lawyer) and to any Independent Children's Lawyer in the proceedings.
2. Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren:

(a) a Children's Court;

(b) a child protection authority;

(c) a State or Territory legal aid authority; and

(d) a convener of any legal dispute resolution conference.

1. Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
2. It is requested that an updated family report be made available to the parties and the court no later than February 2026.
3. I reserve my reasons.

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 Kaneko & Kaneko has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter concerns parenting proceedings between the applicant mother, Ms Kaneko, born 1990, and the respondent father, Mr Kaneko, born 1995. The proceedings were listed for final hearing to commence on 5 May 2025, but this judgment concerns the making of interim orders by consent on that day.
2. For the reasons set out below, the best interests of the children would not have been met by the making of final orders in circumstances where both of the parents struggle with substance abuse and mental health issues with serious implications for the safety, neglect and wellbeing of the children. The resolution that best meets the interests of the children is the making of interim orders that, in the context of a refusal by the Department of Communities and Justice ("DCJ") to join the proceedings, provides some protection and court oversight of the family.

1. The parties commenced a relationship in 2015 and were married in 2022. They separated on a final basis in August 2023.
2. The parties have three children together:

(1) X, born 2016 and aged 9;

(2) Y, born 2018 and aged 7; and

(3) Z, born 2021 and aged 3.

1. The mother also has an older child, B, now aged about 14, who is not the subject of these proceedings, but who is of importance to her siblings.
2. X, Y and Z ("the children") are currently in the care of the father.

1. Exhibit C1 represents the consent terms provided by the parties, with a single modification at Order 31 (altered to become Notation A). That modification dealt with a provision proposed by the parties to make the father subject to directions as to his engagement with an allied health practitioner. Although the intent behind the order, to support the father's mental health, was laudable, the modification was necessary as it was impermissible to make orders that divested judicial authority to an allied health practitioner imbuing directions to be given by the counsellor to the father with the force of an order under the Family Law Act 1975 (Cth) ("the Act").
2. The modification was that the expected engagement between the father and the allied health practitioner was recorded as a notation, against which a failure to follow through by the father may be measured to determine whether the orders more generally require modification in the future.
3. The only further addition to the proposed consent orders was an order providing for an updated family report to be provided prior to the matter returning for dispute resolution.

1. The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Act, the best interests of each child. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence.
2. Where orders are proposed to be made by consent, s 60CC(4) provides that the Court may, but is not required to have regard to all of the matters at s 60CC(2) or (3).
3. Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah, where it was observed that "[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial".[1] Reflecting the earlier case of Goode & Goode, it was accepted that the Court in interim proceedings should not be drawn into:

...issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...[2]

1. Importantly, however, it was accepted, as identified in Eaby & Speelman, that such an approach "does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts".[3]
2. That is, the Court, despite the limitations on testing the evidence and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH identified:

...weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[4]

1. In this case the parents largely agreed with the chronology provided by the mother, being a chronology of factual matters that identified serious risk of harm issues. Additionally, both the ICL and the family report writer identified other matters arising from the material which, whilst undetermined, in the context of the interim proceedings further informs the consideration of risk of harm pending further determination.

1. This summary should not be regarded as a list of concluded findings. Rather, in the context of interim proceedings it sets out areas where the parents commonly identified issues, and other areas where they have provided different accounts in respect of risk, or where the family report writer or the ICL has identified other indicators of risk of harm.
2. The parties live in a township in regional NSW.
3. The parties commenced cohabitation in 2015. At that time the mother already had a child, B, who was then about 5 years old.
4. Although the father had used methamphetamine in 2014, he was clean at the start of the relationship.
5. In 2016 the father commenced using methamphetamine daily. The parties accepted that there were extended periods of abstinence. Although the father alleged that the mother used methamphetamine on a daily basis, she only conceded use on a weekly frequency. They differed as to whether the mother continued to use while pregnant.
6. The parties describe a volatile relationship, characterised by multiple periods of separation. The father describes that the mother engaged in multiple acts of violence toward him, striking him, hitting him with a car, threatening to kill him, and once setting a mattress on fire. The mother described that the father would verbally abuse her, hold his fists up in threat (he accepted this), punch walls (he accepted this), isolate her and threaten to commit suicide. The father accepts that when using methamphetamine he would become "paranoid" causing him to question the mother about where she had been and who she had been with. She alleges financial abuse. The mother described that the parties would choke each other. She attributed part of their conflict to their methamphetamine use.
7. In late 2020 the children and their older sister B were cared for by their maternal uncle and aunt in a nearby town for a period of six weeks. At that point they were unable to be cared for by the parents as the father was incapacitated by his methamphetamine addiction, and the mother was undergoing a period of residential rehabilitation for her methamphetamine addiction.
8. While the mother says that she was the clean for about nine months after her discharge from rehabilitation in 2021, the father says that the abstinent period was only about three weeks.
9. A report to the DCJ Helpline of 20 July 2023 states that X and B had told the reporter that they wanted to kill themselves, that they were distressed and that B had been harming herself. The children and B were screened in due to symptoms of significant psychological harm.
10. In August 2023, in the context of the relationship between the parties being in a precarious state, the father attempted to kill himself in front of the mother. This was in the context of methamphetamine use by the parents. The mother alleged that the father had threatened murder-suicide. The father, accepting that he had suicidal ideation denied that he was a murder-suicide risk.
11. At about this time the parties separated. A physical altercation took place between the parties. The mother alleges that the father threatened to kill her and swung a glass bottle at her head. The father says that the mother repeatedly punched him. The mother says that the father also threatened to kill himself.
12. In 2023 B disclosed that she was the subject of sexual assault in 2017.
13. In August 2023, a DCJ report recorded that "capacity does not exist at (the rural township) to allocate this matter for a statutory response, funded service provider or alternative support pathway referral due to no available vacancies across the sector. The matter was closed under competing priorities".
14. This appeared to be an acknowledgement of the obvious need for intervention by DCJ, but as a lack in the ability of DCJ to do so.
15. In late 2023 an incident occurred resulting in the mother's convictions for assault upon the father and a upon a police officer. The father described that the mother choked him, punched him, threw a chair at him and damaged his car. The mother was then subjected to a community corrections order.
16. The mother says that she used methamphetamine two or three times a week following separation.
17. On 4 December 2023 the case manager at L Organisation noted that Z had been assessed by the DCJ as at risk of significant harm until May 2024 and was referred to the family preservation program.
18. Between December 2023 and January 2024 the mother again engaged in residential rehabilitation, during which time the children had mostly telephone communication with her. The mother says that she was then abstinent for about three months.
19. The mother accepts that she started using methamphetamine again in March 2024, with her usage increasing until September 2024.
20. Following the mother's release from residential rehabilitation the parties agreed that the children would live in a week about arrangement between their two households. The consistency of this arrangement is unclear, but from about April 2024 the children no longer went into the care of the mother, the father retaining them in his care.
21. The father alleges that in April 2024, when he told the mother that he would be keeping the children in his care, she assaulted him by punching him in the head as he held one of the children. The mother was charged with a breach of the ADVO. The father contends that this was the last time that the mother was aggressive toward him.
22. On 11 April 2024 a DCJ Helpline assessment described Z, Y and X as at risk of psychological harm and neglect.
23. On 10 May 2024 the mother commenced proceedings for parenting orders, seeking initially that the children live primarily with her.
24. Interim orders made on 28 May 2024 provided that the children remain primarily in the care of the father, with regular and substantial time with the mother from her provision of a clean drug test. Both parents were then required to participate in urinalysis and hair follicle testing.
25. In May 2024 the father's urinalysis was returned clean.
26. On 29 May 2024 the mother returned urinalysis positive for marijuana.
27. In early June the children spent time with the mother.
28. In June 2024 the mother attempted to kill herself and was hospitalised for about a week. She says that she felt suicidal due to the restrictions in her time with the children. B reported that the mother telephoned B prior to this suicide attempt.
29. The mother says that she still has suicidal thoughts, in the context of wanting the litigation to go away.
30. On 19 June 2024 the mother returned a urinalysis test positive for both marijuana and methamphetamine.
31. Also in June, the children commenced spending substantial time with the mother, including overnight time. The father describes that despite his knowledge of the mother's suicide attempt, he considered that her mental health had been addressed and that she was not abusing substances. It is difficult to understand how such a conclusion could reasonably have been reached by the father.
32. In July 2024, while visiting Queensland, the father recommenced use of methamphetamine, using for several weeks. He described that he understood that the children were not safe living with him at this time and caused them to live with his mother.
33. On 24 July 2024 the mother returned a hair follicle test positive for both marijuana and methamphetamine. The father returned a hair follicle test positive for methamphetamine.
34. On 12 September 2024 the DCJ Helpline noted a report that B had been sexually assaulted by a stranger while walking home.
35. In September 2024 the mother relapsed and self-referred to a drug centre to engage in detoxification.
36. On 2 October 2024, the Court requested that the DCJ intervene in the proceedings, noting that the children might be at imminent risk of exposure to drug use. The risk was based on an update from the ICL.
37. In October 2024 the father's urinalysis was returned clean. On 30 October 2024 the father applied to the Court for interim permission to move with the children to Queensland.
38. The mother says that from this point she has used marijuana daily to assist with sleep when the children were not in her care.
39. On 30 October 2024 the DCJ responded that they would not intervene, and the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia. A further request for intervention was made pursuant to s 91B of the Act.
40. On 20 November the DCJ advised that they would not intervene in the proceedings. The parties were ordered to undertake hair follicle testing.
41. In late 2024 B returned to her mother's care after an extended period in the care of the maternal uncle and aunt.
42. On 3 December 2024 the father returned a clear hair follicle test, albeit non-compliant with the orders that required him to undertake the test as to the span of the test.
43. By her response of 6 December 2024, the mother indicated that she did not oppose the father's proposed move to Queensland with the children.
44. On 9 December 2024 B was screened by the DCJ for serious risk-taking behaviours.
45. On 18 December 2024 a further request pursuant to s 91B was made to the DCJ to intervene. The father's interim relocation application was dismissed in the context of the parties' failure to comply with the previous drug testing orders.
46. The mother accepts that she used methamphetamine across a weekend in January 2025.
47. On 3 February 2025 the father completed a clear hair follicle test.
48. An interagency case conference on 11 February 2025 noted correspondence from a Magistrate recording that the father had threatened to "flog his children and get his uncle to come and flog them".
49. On 12 February 2025 the father advised that he no longer pursued a move to Queensland.
50. In early March 2025 a violent incident between the mother and her landlady saw the end of this accommodation for the mother for herself and B.
51. On 11 March 2025 the DCJ noted that the father was engaged with L Organisation, and that the DCJ would not intervene.
52. On 3 April 2025 the mother returned a hair follicle test positive for methylamphetamine.
53. The matter came before the Court for final hearing on 5 May 2025, at which point the parties sought the opportunity to resolve the matter by consent. The ICL advised that she had obtained some resources for the support of the parties in the absence of intervention by the DCJ.

1. The above circumstances, many of which were not controversial, indicate a significant degree of risk for the children. They face risks of exposure to family violence, exposure to drug use, exposure to serious mental health episodes and self-harm by each of the parents, and the inability of the parents, when impacted by methamphetamine, to care adequately for them.
2. The circumstances for these children are highly precarious, and they face the real prospect that, episodically, they will have no parent to care for them, and that they will be exposed to serious risk of harm.
3. The consent terms that provide for the children to be cared for by the father reflect that, at present, he appears to be cleaner from methamphetamines than the mother. Where the choice is between two vulnerable parents, he is in a better position to provide for the children's best interests. The mechanisms surrounding the orders, including the provision for random hair analysis forms a protection from relapse in two ways - first by communicating to the father that a relapse will likely come to the attention of the Court, and secondly, in enabling the Court to be able to intervene in such an event on the application of the ICL.
4. Whilst the children remain at risk in the care of the father, in the absence of intervention by the DCJ this forms the best approach to the care of the children.
5. In parallel the orders provide for the mother to again undertake residential rehabilitation, with supervised time with the children. This forms the safest mechanism for the children to maintain a relationship with the mother, with a prospect of the strengthening of that relationship should she be able to maintain sobriety, which will be much to the children's benefit, particularly if in the medium term the arrangements with the father break down.
6. It should be acknowledged that both parents are working hard to support their sobriety, and through that their mental health, and through that their capacity to safely care for the children.
7. Staying clean is a difficult path, often accompanied by periods of relapse and recovery. The orders proposed do what can be done in the absence of intervention by the DCJ to support the parents in this path and to give the tools to the Court to intervene should it go wrong in order to seek to protect these vulnerable children.
8. The consent terms, subject to the modifications set out above, are, in the limitations imposed by the circumstances of this case, the best mechanism by which to support these children's best interests.
9. Directions will further be made to cause this judgment to be provided both the Secretary of the DCJ and the Minister responsible.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] Salah & Salah (2016) FLC 93-713 at [37].

[2] Goode & Goode (2006) FLC 93-286 at [68].

[3] Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18].

[4] SS & AH [2010] FamCAFC 13 at [100].