Iannello and Iannello (No.7)

[2020] FCCA 840

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO (No.7) [2020] FCCA 840

Catchwords:
FAMILY LAW – CHILDREN – Suspension of time with Father – Application by the Mother seeking suspension of Father’s time with children for two months – where final judgment and orders were made and children absconded immediately – where the Father failed to comply with final orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2)(a), 60CC(2)(b), 60CC(3)(f)

Applicant: MS IANNELLO

Respondent: MR IANNELLO

File Number: MLC 3008 of 2018

Judgment of: Judge C E Kirton QC

Hearing date: 27 March 2020

Date of Last Submission: 27 March 2020

Delivered at: Melbourne

Delivered on: 27 March 2020

REPRESENTATION

Solicitors for the Applicant: Marshalls + Dent + Wilmoth

The Respondent appearing in person

Independent Children’s Lawyer: Leslie Family Law

ORDERS

1. Order 37 of the Final Orders made on 23 March 2020 be varied so that the time that X born in 2005 and Y born in 2008 are to spend with the Respondent Husband be suspended for a period of two months from 26 March 2020.

2. Order 37 of the Final Orders made on 23 March 2020 be varied so that the matter be adjourned to 9 June 2020 at 9:30am.

3. The Applicant Wife’s costs of and incidental to this Application will be heard and determined on the abovementioned date.

IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.7) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3008 of 2018

MS IANNELLO

Applicant

and

MR IANNELLO

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. Judgment in this matter was delivered on the morning of Monday, 23 March 2020.  The children, X born in 2005 and Y born in 2008 (Children), attended the Court on the fifth floor and had the Orders explained to them by the Independent Children’s Lawyer and Ms Dockeary, who was the psychologist who prepared two Family Reports in this matter.  After the Children left the Court in the care of the Applicant Wife (Wife), they absconded from her care as soon as they left the Court’s premises.  They travelled by public transport to the Respondent Husband’s (Husband) home.

2. The Court notes that the State of Victoria is now in the process of shutting down due to the COVID-19 virus.  The situation is developing rapidly and progressively.  

3. On Monday, the Court ordered in Order 15 that:

   If during the Children’s time with one parent (first parent) pursuant to these orders, the Children or either of them attend the home of the other parent or any other place where the other parent may be from time to time, the other parent do all acts and things necessary to return the child or the Children to the first parent immediately.

4. The Husband did not comply with Order 15 of the Final Orders.  The Wife filed an Application in a Case on 24 March 2020 and an affidavit in support of the Application in a Case. 

5. On 24 March 2020, the Court made a Recovery Order for the Children. 

6. Yesterday, being 26 March 2020, the Children were recovered by the Australian Federal Police, one at 6:00 and the other at 10:00 in the evening.  The Children have, therefore, been subjected to the police recovering them, which is a highly unsatisfactory situation.

7. The Final Orders, which were delivered earlier this week, were drafted with a built-in period of some three weeks for the Children to become accustomed to the new living arrangements.  Recent events can only have had the most unsettling effect upon the Children, particularly with the developing uncertainty with the COVID-19 restrictions in the community in the State of Victoria. 

8. The Independent Children’s Lawyer supports the Application made by the Wife, for a period of two months suspension of the Children’s time with the Husband.

9. The Court, when making any parenting order, is required to take into account section 60CA of the Family Law Act 1975 (Cth), which provides:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

10. The Court then has to take into consideration the primary considerations in section 60CC(2)(a) and section 60CC(2)(b). In this case, section 60CC(2)(b) has been particularly important, and that is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

11. In this case, the need to protect the children from psychological harm and emotional abuse is the particularly significant factor which I found in my Judgment. 

12. Of the additional considerations, section 60CC(3)(f) is particularly important. That section relates to the capacity of each of the Children’s parents to provide for the needs of the Children, including the emotional and intellectual needs. During the trial, the Husband adopted a position that he would not support any parenting orders other than his own.

13. In that case, I expressly found that the Husband would continue to undermine court orders.  In paragraph 268 of the Judgment, I said:

    […] I also find that the Husband will not support any orders of this Court that are not in accordance with the Father’s Proposal.  The Husband will continue in the manner that he has done to date, by undermining orders of the Court in the same manner as he has done, for example by failing to ensure X’s compliance with the May 2018 Week About Order.  I find that the Husband’s attitude to Court orders, both retrospective and prospective, demonstrates that he is unable to appreciate any aspect of parenting from a vantage point other than his own.  This counts as a significant factor against the Husband’s capacity to parent and his ability to provide for the psychological and emotional needs of the Children. 

14. I find that the Husband is unable to act in the best interests of the Children at this point in time.

15. I also note that in the Judgment I included the retrieval order because, as I put in paragraph 346 of the Judgment:

    The ICL’s Proposal included a Retrieval Order, in the event that one or either of the Children absconded from the parent with the care of the child or children at the relevant time.  The Wife’s Proposal included a differently worded order dealing with similar matters.  The Husband’s Proposal did not include any proposal for the location of the Children if they absconded or for the return of the Children.

16. At paragraph 347, I said:

    It is clearly in the best interests of the Children that such orders be made, given the history of this matter.  I therefore I intend to make orders in accordance with the ICL’s Proposal and the Wife’s Proposal.  This is to ensure that the Husband is completely clear about his obligations pursuant to the orders, should either X or Y not comply with the orders I intend to make.

17. Again, I find that the Husband is unable to act in the best interests of the Children at this point in time. 

18. The orders sought by the Wife will allow a period of time for the Children to settle into a routine away from the undermining effect of the Husband. 

19. Today, the Husband has sought to blame the Children.  He says he has warned the Children about not coming to his house.  I find that the Husband’s ability to look after the Children – he is not able to do so. It is in the best interests of the Children if the Court accedes to the Wife’s Application that time spent with the Husband be suspended for a period of two months from yesterday.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 14 April 2020