FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaneko & Kaneko (No 2) [2025] FedCFamC1F 296
File number(s): CAC 825 of 2024 Judgment of: GILL J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – PARENTING – Interim consent orders provided on the first day of final hearing – Where both parents pose a risk to the children arising from their use of methamphetamine – Where the Department has declined to join proceedings on multiple occasions – Where it is currently not appropriate to make orders on a final basis – Proposed consent orders appropriately ameliorate risks to the children Legislation: Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 60CG and 91B Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 5 May 2025 Place: Canberra Counsel for the Applicant: Mr Whitfield Solicitor for the Applicant: Carter & Blumer Counsel for the Respondent: Mr Fren Solicitor for the Respondent: Alzaim Keane Legal Counsel for the Independent Children's Lawyer: Dr Leslie 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:
8 MAY 2025
THE COURT ORDERS THAT:
1.A Registrar of this Court provide to the Secretary of the NSW Department of Communities and Justice and the NSW Minister for Families and Communities a copy of this judgment.
THE COURT ORDERS, UNTIL FURTHER ORDER, BY CONSENT:
Decision Making
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.
3.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.
4.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…
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- Kaneko & Kaneko (No 2) [2025] FedCFamC1F 296
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- [2025] FedCFamC1F 296
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CaseChat Overview and Summary
The court had to consider the significant risks to the children arising from both parents' methamphetamine use, and whether it was appropriate to make interim consent orders on the first day of the final hearing. The court also needed to decide on the appropriate parenting arrangements and the conditions under which the mother could spend time with the children. The court recognised that while both parents posed a risk to the children, it was currently not appropriate to make final orders.
Judge Gill determined that the proposed consent orders would appropriately ameliorate the risks to the children. The court granted sole parental responsibility for major long-term decisions to the father, while both parents agreed that the children would reside in the Town C area and attend D School. The court also mandated supervised visitation for the mother, subject to her completing a residential rehabilitation program and passing drug tests. The court ordered both parents to undergo hair follicle testing for methamphetamines and amphetamines. The court concluded that these measures would ensure the safety and welfare of the children while the parents worked towards resolving their issues.
Orders
Orders of the court
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:
8 MAY 2025
THE COURT ORDERS THAT:
1. A Registrar of this Court provide to the Secretary of the NSW Department of Communities and Justice and the NSW Minister for Families and Communities a copy of this judgment.
THE COURT ORDERS, UNTIL FURTHER ORDER, BY CONSENT:
Decision Making
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.
3. 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.
4. 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.
5. 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.
6. The father will provide the ICL with an authority to speak directly with any childcare, preschool or school attended by the children.
7. 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.
Mother’s Residential Rehabilitation Program
8. The mother will do all things necessary to forthwith attend and complete a 6 month residential program with H Drug and Alcohol Centre.
9. 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.
Live with/Spend time with
10. That the children shall live with the father.
11. 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.
12. 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.
13. That for the purpose of Order 11 herein, J Family Services is to supervise the children’s time with the mother.
14. 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.
15. 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.
16. That the mother shall meet all costs of the supervision agency.
Hair Follicle Testing
17. Upon admission the mother will direct H Drug and Alcohol Centre to provide copies of all drug testing results to the ICL.
18. 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.
19. The hair sample testing that shall be undertaken is chain of custody testing for:
(a) Amphetamines; and
(b) Methamphetamines.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. The hair sample testing that shall be undertaken is chain of custody testing for:
(a) Amphetamines; and
(b) Methamphetamines.
26. 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.
27. 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.
28. 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.
29. 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.
30. Within 24 hours of receipt of the results the father shall provide a copy of the test results to the Independent Children’s Lawyer.
Therapeutic interventions
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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