Iannello & Iannello (No 9)

[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 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.

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

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

HER HONOUR JUDGE C. E. KIRTON QC:

1. This matter is complex, and it went on for a number of years.  It was commenced by way of an Initiating Application filed by the Applicant Mother (Mother) on 20 March 2018, wherein the Mother sought parenting orders in respect of the children of the marriage, X, born in 2005 (X) and Y, born 2008 (Y) (together, the Children).  The Children, at the commencement of these proceedings, were aged 12 and 9 respectively.  X is now almost 16 years of age and Y is 12.  Property matters were introduced on 28 June 2018 when the Respondent Father (Father) filed an Amended Response to Initiating Application seeking orders pursuant to s.79 of the Family Law Act 1975 (Cth).

2. Both the parenting and property components of this matter proceeded to a five day final hearing, which commenced on 19 November 2019.  After four days, this matter was adjourned part-heard to a final day of submissions on 12 December 2019.

3. By the commencement of the final hearing, four interim judgments had been already been delivered – one of which was delivered on the first day of the trial.[1]   The interim judgments concerned subpoenas issued by the Father, interim parental responsibility for the Children, the Father’s part-property settlement application and the Father’s application to transfer the proceedings to the Family Court of Australia. [2]   

   [1] Iannello & Iannello (No 4) [2019] FCCA 3842.

   [2] 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.

4. At the conclusion of the final hearing on 12 December 2019, I reserved my decision and handed down judgment on 23 March 2020.[3]  Since final judgment was delivered, I have proceeded to deliver a further three judgments upon application by the Mother as a result of the Father’s failure to comply with the final parenting and property orders made on 23 March 2020.[4]

   [3] Iannello & Iannello (No 5) [2020] FCCA 589.

   [4] Iannello & Iannello (No 6) [2020] FCCA 761; Iannello & Iannello (No 7) [2020] FCCA 840; Iannello & Iannello (No 8) [2020] FCCA 949.

5. At the final hearing and throughout these proceedings, the Mother was represented by Ms Smallwood SC.  The Father also had very experienced junior counsel with Mr Williams for the duration of the final hearing.  An Independent Children’s Lawyer appeared on behalf of the children, X and Y.  Further, there were two private Family Reports prepared in this matter by Ms G, an experienced report writer.  It is therefore safe to say that this matter has availed itself of everything possible to assist the Court, at the parties’ considerable expense.

6. At the beginning of the trial, the Father’s Counsel addressed the Bench and said words to the effect of ‘The Father will not comply with orders he does not agree with.’  The Father gave evidence when cross-examined by Ms Smallwood SC that ‘No, I’m not going to comply with the orders.’  When cross-examined by Mr Lovett, who appeared on behalf of the Independent Children’s Lawyer, the Father again stated, ‘No, I’m not going to comply with the orders.’  At the end of the trial Mr Williams for the Father said, ‘Well, he’s not going to comply with the orders’.  That is how we find ourselves here today.  The Father has not complied with the orders.  He has done exactly what he said.  In these circumstances, I propose to accede to the Application of Mr Ellis for the Mother, and make the orders sought, because there is no other choice in this matter.

7. Unfortunately, the Court has nowhere else to go.  I have tried and tried with the Father, and the last thing I want to do is issue a warrant for his arrest.  That is really the only other option available to the Court, and it is certainly not something I want to do.  This is the only other way I can see of dealing with this issue, and protecting X and Y.  For the reasons that I have just given, I propose to make the following orders.

I certify that the preceding seven (7) numbered paragraph is a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC.

Associate: 

Dated:       11 March 2021