BELMONT & FLORES

[2020] FCCA 3561

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELMONT & FLORES [2020] FCCA 3561

Catchwords:
FAMILY LAW – Parenting – application for review of registrars decision – where an application in a case seeking a recovery order was filed by the father – where the father resides in the United States of America.

Applicant: MR BELMONT

Respondent: MS FLORES

File Number: BRC 10831 of 2018

Judgment of: Judge Middleton

Hearing date: 21 December 2020

Date of Last Submission: 21 December 2020

Delivered at: Brisbane

Delivered on: 21 December 2020

REPRESENTATION

The Applicant appearing on his own behalf:

Solicitors for the Respondent: VM Family Law

ORDERS

1. That the Application for Review of Registrar Decision be dismissed.

2. That the Application in a Case remain listed for mention to the first day of trial being 23 March 2021.

IT IS NOTED that publication of this judgment under the pseudonym Belmont & Flores is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10831 of 2018

MR BELMONT

Applicant

And

MS FLORES

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter comes before me today to review a Registrar’s decision.  An application in the case was filed on 18 December 2020.  That application sought a recovery order.  The Registrar, having reviewed the material, made an order that the application be listed for the first day of trial on 23 March 2021. 

3. The applicant filed a Review of Decision of Registrar stating that the application will be moot by that time because he is due to see his son during this current Christmas break.  The difficulty that surrounds this particular child is this:  The father lives in the United States of America; the child lives in Australia. 

4. There is a pandemic worldwide that is affecting relationships and/or arrangements concerning children.  The pandemic situation in the United States of America is well known to be horrific.  There are thousands of people dying every day.  The father says that he cannot spend time with the child in Australia because he would need to quarantine for two weeks prior to spending time, and the costs involved due to the necessity of arranging personal accommodation during the time that he spends with his child.  Of course, if the child were to travel to the United States of America to spend time with his father, firstly, himself would be put at risk; secondly, upon return, he would be required to enter into quarantine alone in Queensland for a period of two weeks. 

5. It is incredibly unfortunate and harrowing for families during this pandemic.  However, in deciding whether to make a recovery order or not, it is the best interests of the child that is my paramount consideration.  I cannot see that it would be in this child’s best interests to travel to a country where there is a deadly pandemic running rife, nor would it be in his best interests to return to Australia and be placed in quarantine. 

6. As I say, it is unfortunate but in those circumstances, having reviewed the Registrar’s decision and noting that it is unlikely that a recovery order would be granted, I agree with the registrar that the appropriate date for this recovery application should be the first day for trial. 

7. The final matter that requires some consideration is this:  The father says that if the child were to return to the United States he would provide safety and arrangements for the child such that he would not be impacted by the Covid-19 pandemic.  I have read the father’s supporting affidavit and there is nothing contained within the affidavit, in the form of evidence or even comment that sets out the steps that the father would take.  In those circumstances the matter remains listed on the first day of trial. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Associate: 

Date:  15 January 2021