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

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.
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.
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)

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 840
Decision Date: 27 March 2020

CaseChat Overview and Summary

In *Iannello and Iannello (No.7)*, heard by Judge C E Kirton QC, the application concerned variations to final orders previously made on 23 March 2020, specifically relating to the time children, X (born 2005) and Y (born 2008), were to spend with the Respondent Husband. The dispute centred on the immediate practicalities and potential risks associated with the children's time with the Respondent Husband in light of the evolving COVID-19 pandemic.

The primary legal issue before the court was whether to vary the existing final orders concerning the children's time with the Respondent Husband. This involved considering the impact of the pandemic on the practical implementation of the orders and the welfare of the children. The court was required to balance the principle of maintaining existing parenting arrangements with the need to address emergent risks and practical difficulties.

The court reasoned that the unprecedented circumstances presented by the COVID-19 pandemic warranted a temporary suspension of the existing contact orders. This decision was based on a pragmatic assessment of the risks and difficulties in complying with the orders as originally made, particularly concerning travel and potential exposure. The court exercised its discretion to vary the orders to provide a period of adjustment and to allow for further consideration of the matter. Consequently, the court ordered that the time X and Y were to spend with the Respondent Husband be suspended for two months from 26 March 2020, and adjourned the matter for further hearing on 9 June 2020, at which time the Applicant Wife's costs would also be determined.

Orders

Orders of the court

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.

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.

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

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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