Iannello & Iannello (No 9)

Case [2021] FCCA 441


FEDERAL CIRCUIT COURT OF AUSTRALIA

Iannello & Iannello (No 9) [2021] FCCA 441

File number(s): MLC 3008 of 2018
Judgment of: HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment: 3 February 2021
Catchwords: FAMILY LAW – Children – application for recovery order – where the Mother makes an application seeking return of eldest child to Mother’s care and a recovery order in default – whether a recovery order should issue in respect of the eldest child of almost 16 years – where Father has consistently failed to comply with final parenting orders – where the Mother has filed contemporaneous contravention proceedings in this Court  –  where the Father and members of the Fathers family have not agreed to return the child to the Mother’s care – Father ordered to return the child to Mother’s care – recovery order to issue upon failure to return the child – orders made suspending the Father’s time with the children for a period 6 months.  
Legislation cited: Family Law Act 1975 (Cth), s 79
Cases cited:  Iannello & Iannello [2018] FCCA 3528
Iannello & Iannello (No 2) [2018] FCCA 3662
Iannello & Iannello (No 3) [2018] FCCA 3752
Iannello & Iannello (No 4) [2019] FCCA 3842
Iannello & Iannello (No 5) [2020] FCCA 589
Iannello & Iannello (No 6) [2020] FCCA 761
Iannello & Iannello (No 7) [2020] FCCA 840
Iannello & Iannello (No 8) [2020] FCCA 949
Number of paragraphs: 7
Date of last submission/s: 3 February 2021
Date of hearing: 3 February 2021
Place: Melbourne
Solicitor for the Applicant: Marshalls & Dent & Wilmoth
Counsel for the Respondent: Mr Grant
Solicitor for the Respondent:  Destra Law

ORDERS

MLC 3008 of 2018
BETWEEN:

MS IANNELLO

Applicant

AND:

MR IANNELLO

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

3 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The Respondent Father (Father) return the child X born in 2005 (X) to the Applicant Mother’s (Mother) care at 5:00 pm on the day of this Order and in default, upon written communication from the Mother’s legal representative, that 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 THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

2.The time that X born in 2005 (X) and Y born in 2008 (Y) (collectively, Children) are to spend with the Father pursuant to Orders 5 to 9 made on 23 March 2020, be suspended for a period of 6 months from the date of this Order.

3.If at any time after the resumption of the Children’s time with the Father following the suspension provided for in Order 2 hereof the Children are not returned to the Mother’s care as required…

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Iannello & Iannello (No 9) [2021] FCCA 441
Case
[2021] FCCA 441
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CaseChat Overview and Summary

In *Iannello & Iannello (No 9)*, Her Honour Judge C. E. Kirton QC of the Federal Circuit and Family Court of Australia considered an application by the Mother for the return of the child X, born in 2005, to her care. The dispute concerned the welfare and location of the child X, and the court also made orders regarding the children X and Y, born in 2008, and their time with the Father.

The court was required to determine whether to order the immediate return of child X to the Mother's care and, if necessary, to issue a Recovery Order. Additionally, the court considered the suspension of the Father's time with both children, X and Y, as previously ordered, and the conditions under which such suspension might continue. The court also noted provisions relating to family violence allegations and the implications for unrepresented parties under section 102NA of the *Family Law Act 1975* (Cth), including the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Her Honour ordered the Father to return child X to the Mother's care by 5:00 pm on the day of the order, with a Recovery Order to issue in default. The court further ordered that the time the children X and Y were to spend with the Father, pursuant to earlier orders, be suspended for a period of six months. This suspension would continue if the children were not returned to the Mother's care as required after the initial suspension period resumed. The court also highlighted the particulars of obligations and consequences for contravening these orders, as set out in an attachment, and reminded parties of the confidentiality provisions under section 121 of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

MLC 3008 of 2018

BETWEEN:

MS IANNELLO

Applicant

AND:

MR IANNELLO

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

3 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The Respondent Father (Father) return the child X born in 2005 (X) to the Applicant Mother’s (Mother) care at 5:00 pm on the day of this Order and in default, upon written communication from the Mother’s legal representative, that 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 THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

2. The time that X born in 2005 (X) and Y born in 2008 (Y) (collectively, Children) are to spend with the Father pursuant to Orders 5 to 9 made on 23 March 2020, be suspended for a period of 6 months from the date of this Order.

3. If at any time after the resumption of the Children’s time with the Father following the suspension provided for in Order 2 hereof the Children are not returned to the Mother’s care as required by the Orders made on 23 March 2020, the Children’s time with the Father is suspended.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

E. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (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 Attachment and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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