IANNELLO & IANNELLO (No.6)

[2019] FCCA 761

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO (No.6) [2020] FCCA 761

Catchwords:
FAMILY LAW – CHILDREN – Recovery order – ex parte judgment – application by the mother seeking a recovery order – where final judgment and orders were made the day prior to recover order application – where the father has failed to comply with the final orders – recovery order issued.

Legislation:

Family Law Act 1975 (Cth), ss.67Q and 67U

Applicant: MS IANNELLO

Respondent: MR IANNELLO

File Number: MLC 3008 of 2018

Judgment of: Judge C E Kirton QC

Hearing date: 24 March 2020

Date of Last Submission: 24 March 2020

Delivered at: Melbourne

Delivered on: 24 March 2020

REPRESENTATION

Solicitors for the Applicant: Marshalls + Dent + Wilmoth

Solicitors for the Respondent: Ex Parte

Independent Children’s Lawyer: Leslie Family Law

ORDERS

1. The Applicant Wife’s Application in a Case filed 24 March 2020 be adjourned to the Federal Circuit Court of Australia on 27 March 2020 at 10:00 am for telephone Mention.

2. That all times be abridged to allow the Wife’s Application in a Case, filed 24 March 2020 to be heard as a matter of urgency.

3. That the Applicant Wife be granted leave to proceed ex parte.

4. A Recovery Order pursuant to ss.67Q and 67U of the Family Law Act 1975 (Cth) do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)To find and recover the children X born in 2005 and Y born in 2008  (“the Children”);

   (b)To deliver the Children to the Applicant Wife at:

   DDD Street, Suburb FF VIC in the State of Victoria, or such other place (reasonably accessible by the Applicant Wife) as the person effecting such recovery nominates;

   (c)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the Children may be found; and

   (d)Arrest, without warrant, the Respondent Husband in the event that the Respondent Husband again removes or takes possession of the Children after the execution of the Recovery Order.

5. Order 4 of these Orders, being the Recovery Order, be stayed until 9:00am on 25 March 2020.

6. That the Applicant Wife, as soon as practicable, serve the Respondent Husband with sealed copies of this Order, the Application in a Case, filed 24 March 2020 and the Applicant Wife's Affidavit, affirmed and filed on 24 March 2020.

7. Order 33 of the Orders made on 23 March 2020, discharging the appointment of the Independent Children’s Lawyer, be stayed until further order.

8. The Applicant Wife be at liberty to provide a copy of the Judgment, Iannello & Iannello (No.5) [2020] FCCA 589, delivered 23 March 2020, the Orders made 23 March 2020 and the Orders made 24 March 2020, to the Department of Health and Human Services.

9. The Applicant Wife’s costs of and incidental to today be reserved.

10. That there be liberty to apply on short notice.

AND THE COURT NOTES THAT:

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.6) 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. The Court has before it the Wife’s Application in a Case filed on 24 March 2020 and the Wife’s affidavit filed on 24 March 2020.  In this matter, final Judgment was delivered yesterday morning at 10:00 am. 

2. The Orders made in Order 4 yesterday were that the children, X, born in 2005, and Y, born in 2008 (Children), live with the Mother. 

3. Order 15 of the Orders yesterday required that if during the Children’s time with one parent, being the 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 Wife’s affidavit filed today deposed to circumstances where the Children left her care yesterday at 11:00 am.  The Wife’s affidavit also deposes that the Children are now with the Husband.  It also deposes that the Husband has not complied with Court orders, and, in particular, Order 15 of yesterday.  Moreover, the Husband is in blatant breach of those final Orders. 

5. The Wife’s application also seeks a stay on the orders discharging the Independent Children’s Lawyer, which was Order 33 of the Orders made yesterday.  Ms Leslie has indicated to the Court today that she does not oppose that order and the Court will make that order accordingly.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date:  2 April 2020