Kaneko & Kaneko
[2025] FedCFamC1F 3
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaneko & Kaneko [2025] FedCFamC1F 3
File number(s): CAC 825 of 2024 Judgment of: GILL J Date of judgment: 9 January 2025 Catchwords: FAMILY LAW – PARENTING – Consideration of whether the NSW Department of Communities and Justice should be invited to join proceedings – Where the Department has previously declined such invitation – Where a high level of risk of harm to the children is presented by both the mother and the father – Where the Department has protective resources unavailable to the Court – Determined that it is appropriate to reissue the request for the Department to join proceedings Legislation: Family Law Act 1975 ss 62G, 67ZBE and 91B Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 18 December 2024 Place: Canberra Counsel for the Applicant: Mr Whitfield Solicitor for the Applicant: Carter & Blumer Solicitor for the Respondent: Ms Steele, Alzaim Keane Legal Counsel for the Independent Children's Lawyer: Mr Haddock Solicitor for the Independent Children's Lawyer: Bowral Legal ORDERS
CAC 825 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KANEKO
Applicant
AND: MR KANEKO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to section 91B of the Family Law Act 1975 (Cth) it is requested that the NSW Department of Communities and Justice intervene in these proceedings.
2.Upon request from the NSW Department of Communities and Justice, the Court provide copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in these proceedings.
3.The NSW Department of Communities and Justice is requested to advise in writing and within 28 days whether they intend to intervene in these proceedings.
AND THE COURT NOTES THAT:
A.The matter has currently been adjourned to a date to be fixed which will not be set until the parties have complied with the order in respect of hair follicle testing.
B.It is requested that a Registrar of this Court provide the NSW Department of Communities and Justice with a copy of these orders and the following reasons via the following email addresses:
...@...; and
...@....
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns current parenting proceedings where there is a genuine issue as to whether the children, X, born in 2016; Y, born in 2018; and Z, born in 2021, are at serious risk of harm in the care of either of their parents and, accordingly, the imperative for the NSW Department of Communities and Justice (“the Department”) to join and participate in the proceedings.
Section 91B of the Family Law Act 1975 empowers the Court to request the intervention of the officer of a relevant State, Territory or Commonwealth body responsible for the administration of child welfare laws. Here it is the Department who is charged with taking action when a child is in need of care and protection.
Whilst the discretion to request intervention is broad, it might be thought that its usual use will be, as in this case, where there is a significant prospect that there is no suitable protective parent available, and the Department’s involvement is necessary as either a potential substitute carer and exerciser of parental responsibility or to sufficiently scaffold the parents and children as to provide a safe environment for the children without their removal from the family. In other words, where there is strong overlap between the responsibility of the Department in relation to the care and protection of children and the exercise of the jurisdiction of this Court in making parenting orders in the best interests of the children.
Section 91B provides that, should the Department accede to a request to join the proceedings, then it will have the rights duties and liabilities of a party to the proceedings. That is, it will participate in the proceedings with equal standing to a parent.
The parties and children
The mother, Ms Kaneko, born in 1990, and the father, Mr Kaneko, born in 1995, married in 2022. They separated on 5 August 2023. There are three children of the relationship, X, Y, and Z.
The mother has a child, B, born in 2010, from a previous relationship.
Relevant litigation history
These proceedings were commenced in Division 2 of the Federal Circuit and Family Court of Australia on 13 May 2024. On that day it was listed for interim hearing on 28 May 2024, and orders were made pursuant to s 67ZBE, directed to NSW Police and the Department for the production of information and documents relating to the children, including B, the mother, and the father. On 28 May 2024 orders were made for the children to live with the father, spend time with the mother, for the appointment of an Independent Children’s Lawyer (“ICL”), and for urinalysis and hair follicle testing of both parents.
Following the receipt of the s 67ZBE material, and directions that the parties attend a Family Dispute Resolution Conference, on 2 October 2024 a request was made pursuant to s 91B for the Department to intervene.
On 30 October 2024 the father filed an application in proceedings proposing to move with the children to Queensland.
On that day a representative from the Department attended Court and advised that the Department would not intervene, citing a preference for maintaining the family in their present parenting program, but also indicating a review of that decision within three weeks. On 4 November 2024 the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia.
On 20 November 2024 the matter was set for interim hearing on 19 December 2024 (later amended to 18 December 2024), with orders made for preparation for the hearing, including for the release of material and hair follicle testing. The Department confirmed its decision not to intervene.
On 6 December 2024 the mother filed a response to the father’s application, indicating her agreement to such and seeking orders for time with the children pending the move, and then on her move to Queensland, continuing the arrangement provided in the orders made 28 May 2024. This move, it may be expected, would see the children and parents detached from the supports currently available to them, and also take them outside the supervision of the Department.
Despite the parents’ general agreement as to interim orders (a position resisted by the ICL), on 18 December 2024 the proceedings were adjourned to a date to be fixed as the parties had not complied with the hair follicle tests as directed, and orders were made for the preparation of a family report pursuant to s 62G of the Act.
Risk issues
The parent’s proposed move with the children away from their current parenting program in Town C NSW to Queensland, occurs within a context of risk identified by the ICL in a comprehensive chronology extracted from the material obtained by virtue of the s 67ZBE orders. A brief summary of that document is as follows:
·02/2021 – Report that the children have been known to the DCJ since 2017 (clearly not all of the children). B discloses assault by the father (her stepfather) several months prior by kicking, leaving a bruise.
·07/2023 – Parties separate and the father removes the three children. B reported to have described a violent incident, including assault of the mother by the father, and the father’s removal of the three other children.
·07/2023 – DCJ assessment records the father as having openly used an illicit drug and alleges that the mother is out of control with her drug addiction. There is a redacted report of X and B saying that they want to kill themselves, and of B harming herself. NSW Police report that the parties both use illicit drugs.
·07/2023 – DCJ reported to have closed case due to a lack of resources and competing priorities.
·08/2023 – NSW Police report family violence incident between the mother and the father, the mother was alleged as aggressor. The mother made admissions as to relapse, asserting that the father provides her with drugs that they use together.
·Mid-2023 – The mother reports the father threatened her with a weapon. The mother alleges the father threatened suicide and murder suicide. The father concedes that he was planning to commit suicide, but denies murder component. The father attends Town C hospital for mental health assessment. Incident report from the school reports concerns for children.
·Late 2023 – NSW Police report the mother concedes relapse alongside the father, in context of an attempt to rekindle their relationship. Subsequently, the is mother arrested following a family violence incident, damaging of the father’s car, and an altercation with police. The school later reports that X is recorded to have alleged seeing the mother choking the father.
·10/2023 – Parenting program notes record the father as using an illicit substance, and the mother as on bail awaiting court.
·Late 2023 – The father is reported as saying that he was in hospital the previous day in relation to mental health reasons. The DCJ reported that this was due to the father hearing voices.
·12/2023 – Z (then 4 years old) was noted by the parenting program caseworker as having been identified by the DCJ as a child at risk of significant harm.
·Early 2024 – NSW Police note an attempted reconciliation between the parties. Subsequently, there was a dispute over handover of the children which culminated in the mother assaulting the father (in the presence of the children).
·04/2024 – DCJ notes screen Y and X as at risk of psychological harm and neglect.
·04/2024 – Father is recorded to have reported to his caseworker that he is working at re-establishing abstinence (i.e. has suffered relapse).
·05/2024 – The father concedes a “slip-up” using drugs, alleging he relapsed after the mother used drugs in front of him.
·Mid-2024 – Allegation that the mother attempted suicide. B was involved in talking the mother down and the mother was hospitalised.
·07/2024 – Case manager observes the father to have threatened Y (then aged 6 years) to get his uncle to “flog” him, and to have represented to the case manager “I’m going to flog them so hard.”
·08/2024 – Discussion between case manager and unknown regarding steps for the father to mitigate against relapse. The father is recorded as admitting to relapse when recently visiting his cousin in Queensland. The father is noted at this time to have disconnected from his Town C based supports. Late August 2024 the father shows his caseworker that he is storing his illicit substance in his bedroom, and a risk of the children coming into contact with the drugs is identified.
·09/2024 – Reported that the mother and father are both committed to entering into a detoxification program, and they are noted to have recommenced their relationship. The home was noted by a program caseworker to not be safe for children due to the parents’ mutual drug use. They are reported to be both using an illicit drug. The home is also noted to be dirty and lacking food.
DISCUSSION
Accepting that the above chronology is untested, and a number of entries lack the identification of a source, a number of risks emerge. Whilst the neglect and violence issues accompanying the parents’ alleged drug use mark out both acute and chronic risks to the children physically, psychologically and developmentally, the allegations of suicidality on the part of both parents raise issues of lethality of risk. Whilst contested, on the father’s part that includes a direct threat of such, and on the mother’s side, the direct involvement of B. Whilst B is not currently the subject of these proceedings, her involvement, and her exposure to risk is illustrative of the risk to the other children who are currently the subject of the proceedings.
Whilst the family has had the ongoing support of caseworkers, in particular directed to the preservation of the family, these risks have emerged during that support. Without that support the risk can only be expected to worsen.
The current picture is highly suggestive of the children, even with current support, being at high risk of harm, and that harm being presented by both parents.
The Court can adjudicate a dispute between the parents, and if involved, the Department. Beyond the use of information gathering powers, the appointment of an ICL, and the preparation of a Family Report (all of which have been ordered) the Court does not have an investigative facility to identify the depth and scope of the risk, other than as a result of information brought to the Court.
Unlike the Court the Department does have such a facility.
Similarly, whilst parental responsibility can be allocated by the court, and injunctive relief granted, and parenting orders made to provide for whom children will live and spend time with, the Court does not have a facility to author the necessary practical supports to protect the children within the family context.
The Department has such a facility (albeit restricted in accordance with the resources allocated to it by government).
Further, in allocating parental responsibility and making parenting orders, the Court is limited in its options to the parties to the proceedings. Where those options are only the parents, who (dependent upon the facts determined in the case) may not have the capacity to protect and care for the children, the Court is limited in its response to choosing between options where the children are at risk of harm.
CONCLUSION
In the circumstances of this case it is appropriate to renew the request for the intervention of the Department.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 January 2025
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