IANNELLO & IANNELLO (No.2) - [2018] FCCA 3662

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO (No.2)

[2018] FCCA 3662

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – parental responsibility – whether the mother should have sole parental responsibility with regards to one child attending counselling – where there are orders in place for the child to attend counselling and there is evidence that the father has inhibited this process – whether the parties should be restrained from communicating with the children when they are living with the other parent – evidence that excessive communication is occurring – orders made for sole parental responsibility with regards to the child attending counselling – orders made restraining the parents from communicating with the children when not living with them.

FAMILY LAW – Property – interim property orders – orders in place for the sale of the former matrimonial home – evidence that the husband has delayed and has been uncooperative with regards to the sale – s.106A order made.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 68B, 106A

Estate Agents Act 1980 (Vic), ss.47A, 47AF

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422
Iannello & Iannello [2018] FCCA 3528

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348
U v U (2002) 211 CLR 238

Applicant:

MS IANNELLO

Respondent:

MR IANNELLO

File Number:

MLC 3008 of 2018

Judgment of:

Judge C. E. Kirton QC

Hearing date:

26 November 2018

Date of Last Submission:

26 November 2018

Delivered at:

Melbourne

Delivered on:

12 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Marshalls & Dent & Wilmoth Lawyers

Counsel for the Respondent:

Ms Jenkins

Solicitors for the Respondent:

Bayside Family Law Solutions

Solicitors for the Independent Children's Lawyer:

Ms Kourtis, McKean Park Lawyers

PENDING FURTHER OR OTHER ORDER:

Parenting

Paragraph 2 of the interim orders made by Judge C E Kirton QC on 4 May 2018 be discharged.
The Wife have sole parental responsibility for the child [X] born [date] 2005 ([X]) in relation to [X]’s attendance upon a counsellor in accordance with the interim consent orders made by Judge C E Kirton QC on 26 October 2018.
The parties otherwise have equal shared parental responsibility for the children [X] and [Y] born on [date] 2008 (Children).
Pursuant to s.68B(1) of the Family Law Act 1975 (Cth), the Husband and the Wife be and are hereby restrained by injunction from initiating communication to, or accepting communication from, the Children while the Children are not living with them and the Independent Children’s Lawyer forthwith meet with the Children to explain this order to them.

Property

Pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Melbourne be forthwith appointed to:
(a)Execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home situate and known…

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.

Continue reading IANNELLO & IANNELLO (No.2)

Details

AGLC: Iannello and Iannello (No.2) [2018] FCCA 3662
Case: [2018] FCCA 3662
Decision Date: 12 December 2018

CaseChat Overview and Summary

In this interim decision, Kirton QC J considered a dispute between a Husband and Wife concerning parental responsibility for their children. The Wife sought sole parental responsibility for one child's attendance at counselling, while also seeking equal shared parental responsibility for the children generally. The Independent Children's Lawyer agreed with the Wife's proposal. The Husband opposed these orders, seeking to maintain the existing orders for equal shared parental responsibility for the children.

The primary legal issue before the court was whether the presumption of equal shared parental responsibility was inappropriate in the circumstances, specifically in relation to the child's counselling. This required the court to consider the primary considerations under section 60CC(2) of the *Family Law Act 1975* (Cth), according to which greater weight was accorded to the child's best interests and the need to protect them from harm. The court also considered the additional considerations under section 60CC(3) of the Act.

Kirton QC J reasoned that the Husband's inaction and opposition to the child attending counselling, despite the Family Report recommending it and existing court orders requiring compliance, demonstrated unsatisfactory behaviour. The court found that the Husband's explanation for his lack of involvement was not accepted and that his conduct had prevented the commencement of the child's counselling. Applying the principles from *Marvel v Marvel* and *Goode v Goode*, the court adopted a conservative approach to protect the children.

Consequently, the court made an interim order for sole parental responsibility in favour of the Wife regarding the child's attendance at counselling. The court also ordered that the parties otherwise have equal shared parental responsibility for the children, as agreed by the Wife and the Independent Children's Lawyer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Interim Intervention Order was made a month after the Wife left the Property A Property on 27 February 2018. The Interim Intervention Order was made in circumstances where the Husband alleged that the Wife was engaging in escalating controlling and manipulative behaviour and was financially abusive[67].[67] Ibid., at [9].(iii) any evidence admitted in proceedings for the order; There is no evidence before the Court of any evidence admitted in the proceedings for the intervention order.(iv)any findings made by the court in, or in proceedings for, the order; There is no evidence before the Court of any findings made in the proceedings for the intervention order. (v) any other relevant matter; There were no other matters relevant to s.60CC(3)(k). This is an interim decision. The proceeding is listed for final hearing commencing on 20 May 2019. All relevant matters have been considered in other parts of this judgment. In considering this interim decision, I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[68].[68] (2010) 43 Fam LR 348, at [120]. I have followed the legislative pathway as required by Goode v Goode[69], to the extent that I have been able, given that this is an interim case on a limited number of issues. [69] (2006) 36 Fam LR 422, 445, at [81]-[82]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. The Wife seeks an order for sole parental responsibility for [X] in relation to [X]’s attendance upon a counsellor, in accordance with the October Orders. The Wife also seeks an order that the parties otherwise have equal shared parental responsibility for the Children. The ICL agrees with this proposal. The Husband opposes these orders and seeks that the orders made on 4 May 2018, that the parties have equal shared parental responsibility for the Children, remain in place. For an interim order for sole parental responsibility regarding [X]’s counselling to be made in favour of the Wife, I must be satisfied that the presumption of equal shared parental responsibility is not appropriate in the circumstances: s.61DA(3). The Wife has been proactive in attempting to make arrangements for [X] to attend counselling with Ms D. The Husband has done nothing and by doing nothing has prevented the commencement of [X]’s counselling. As the parents have equal shared parental responsibility for [X], Ms D requires both parents to consent before she commences the confidential counselling with [X]. I do not accept the Husband’s explanation that his dispute with his previous solicitors prevented him from contributing to the arrangements for [X] to have counselling. On 26 November 2018 at the interim hearing of this matter, the Husband’s attitude was that the counselling had only been delayed “a couple of weeks, not months and months”[70]. He denied delaying the arrangements for [X]’s counselling. The Husband’s behaviour is unsatisfactory. Firstly, because it is evident from the Family Report that [X] is distressed and the Family Report recommends the confidential counselling. Secondly, the October Orders require the Husband’s compliance and he has not complied with the orders. [70] Transcript T 19:1-2.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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