BELMONT & FLORES - [2020] FamCAFC 290

FAMILY COURT OF AUSTRALIA

BELMONT & FLORES

[2020] FamCAFC 290

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the appellant seeks expedition of the appeal brought from an order dismissing an application for a recovery order – Where the recovery order relates to a period which has already passed – Where the appeal is futile – Where the appellant seeks for this Court to provide an authoritative interpretation of the relevant order – Where that is not the function of an appellate court – Where a futile appeal should not be given priority to the possible detriment of other cases – Application dismissed – No order as to costs.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 12.10A

APPELLANT:

Mr Belmont

RESPONDENT:

Ms Flores

FILE NUMBER:

BRC

10831

2018

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

20 November 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane via telephone link

JUDGMENT OF:

Tree J

HEARING DATE:

17 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 October 2020

REPRESENTATION

THE APPELLANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

VM Family Law

Orders

The appellant’s Application in an Appeal filed 5 November 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 69 of 2020
File Number: BRC 10831 of 2018

Mr Belmont

Appellant

And

Ms Flores

Respondent

REASONS FOR JUDGMENT

Introduction

On 8 October 2020, for reasons then orally delivered, a judge of the Federal Circuit Court of Australia dismissed an application brought by Mr Belmont (“the appellant”) seeking to recover the one child to the parties’ relationship, Z born in 2012, and hence presently 8 years of age (“the child”). On 15 October 2020, the appellant filed a Notice of Appeal from that order. Now by Application in an Appeal filed 5 November 2020, the appellant seeks “[t]hat the court grant an [e]xpedited [h]earing on this matter.” Ms Flores (“the respondent”) opposes the order for expedition. For reasons which follow, the application will be dismissed.

Background

On 24 May 2018, the appellant and respondent entered into consent parenting orders in relation to the child in the District Court of State B. Whilst the language employed in the orders is somewhat alien to that used in the Australian family law jurisdiction, in substance it appears as though, using Australian terminology, that pursuant to those orders, the parties have equal shared parental responsibility for the child, who lives with the respondent in Australia, but spends time with the appellant (whether in Australia or otherwise) during Australian school holidays, together with an additional four weeks in Australia during school terms.
The orders were registered with the Family Court of Australia on 10 October 2018.
Relevant to the appeal, is the order which deals with school holiday time as follows:
2.
…
(c) Possession Schedule
Except as otherwise expressly provided in this Possession Order, [the appellant] shall have the right to possession of the child as follows:
1.        School breaks:
The dates listed below are applicable to the 2018-2019 school year in Queensland, Australia. The parties agree to adjust them as to future school years to reflect the same time periods contemplated and will reach written agreement yearly as to those time periods. [Appellant] shall have possession of the child as follows:
a.        Beginning June 25, 2018 and ending on July 13, 2018;
b.        Beginning September 17, 2018 and ending on October 5, 2018; and
c.        Beginning December 10, 2018 and ending January 25, 2019.
IT IS ORDERED that both [respondent] and [appellant] shall deliver the child to the international airport in their respective geographic area at least 3 hours prior to the child’s scheduled flight and escort the child to the appropriate airline personnel so the child may travel as an unaccompanied minor during the exercise of each period of possession above.
Notwithstanding the parties’ agreement to those orders, difficulties have ensued. Particularly, it appears as though, in the December 2018 school holidays referred to in order 2(c)(1)(c) extracted above, the respondent did not make the child available to the appellant, which led to him bringing an application for a recovery order before a judge of the Federal Circuit Court, and which resulted in a recovery order being made on 10 December 2018.
Whilst I do not know what occurred in the June/July 2020 Queensland school holidays, it seems clear that the child was again not made available to the appellant during the September school holidays, which resulted in him bringing a further application for a recovery order, which was dealt with by the primary judge on 8 October 2020 as discussed earlier.
The parties are agreed that the primary judge’s reasons for dismissing that application for a recovery order are to be discerned from the transcript of the proceedings, which was in evidence before me.
At page 6 of that transcript, commencing at line 12, there is the following exchange which seems to be the substance of the primary judge’s reasons:
HIS HONOUR: --- just let me say this. The orders specifically say that the child is not to be removed from Australia or America without the written consent of either parties. The orders specifically say that you’re to reach an agreement in relation to the time period in school holidays. Is there any written agreement as to when you would take this child and where you would take this child?
[THE APPELLANT]: Yes, your Honour. Your Honour, this order has been in place for the last two years, and ---
HIS HONOUR: [The appellant], I’m going to ask you one more time. Where is the written agreement relating to the September school holidays?
[THE APPELLANT]: Your Honour, some of the emails from both parties that [the respondent] tried to change the terms of the agreement, and I did not agree with that.
HIS HONOUR: [The appellant] ---
[THE APPELLANT]: Yes sir,
HIS HONOUR: --- one more time.
[THE APPELLANT]: I don’t have a ---
HIS HONOUR: Is there a written agreement ---
[THE APPELLANT]: --- written agreement, your Honour. I don’t have a written agreement, your Honour, because [the respondent’s solicitor] was asking for conditions that were ….. to the current ---
HIS HONOUR: I understand that you haven’t reached an agreement, and I understand that you wish to suggest that the other side are at fault in relation to why you can’t reach an agreement, which [the respondent’s solicitor] indicated that her client believes you’re at fault as to why you haven’t reached an agreement. But in the circumstances, I have to dismiss the recovery order application.
(Transcript 8 October 2020, p.6 lines 12–45)
It is from that order that the appellant has appealed.

The appeal

There are seven grounds of appeal in total, as follows:
1. Grounds for appeal are based on the facts that Judge Turner and [the primary judge] are interpreting the same orders agreed by consent of the parties and signed in the United States and which was Registered without variation in Australia on or about 10 October 2018... We believe the order on its face is being misapplied by [the primary judge], by requiring the parties to agree on dates the child is to be delivered to [the appellant] and suggesting that if no agreement is reach then [the respondent] is not required to deliver the child per the existing order. The Judge also erred by allowing [the respondent] to freely modify the terms of the agreement. [The primary judge] failed to read the Order and relied on respondent’s solicitor for interpretation of said ORDER.
2. In essence the Order explicitly grants [the appellant] specific dates he is to have possession of his Child in the United States, (See Page 8 of said ORDER) RIGHT OF POSSESSION during all school breaks. Without alteration or modification other than the “actual” dates of schools which slightly changes from year to year.
3. Also, under page 9 sub paragraph C, the Order further outlines the possession scheduled the [appellant] is AUTHORIZED to have the child to spend time with him in the United States…
4. Judge Turner read the ORDER and agreed (See Annexure C, order for Emmergency [sic] Recovery). On or about 17 December 2018 [the respondent] breached the agreement and refused to deliver the child to [the appellant]. An emmergency [sic] recovery order was filed and your Honorable Judge Turner issued the order for recovery requiring [the respondent] to deliver the child. The Australian Federal Police was notified and the Child was recovered and delivered to [the appellant].
5. Now on 1 October 2020, and there being no modification to the order, [the appellant], filed another application for Emmergency [sic] Recovery before [the primary judge] who clearly did not read the Order and instead relied on the interpretation of the Order from the respondent solicitor and refused to enforce the Order. [The primary judge], now suggests that despite [the appellant] having a guaranteed right of possession he must reach agreement with [the respondent] prior. There is nothing in the existing order that requires [the appellant] to agree with [the respondent] for the Guarntee [sic] periods of possession.
6. Therefore, if [the respondent] just say “no” AFTER [the appellant] notifies [the respondent] that he is coming to pick up his son, [the appellant] would have no recourse. The parties may never be in agreement. How is that fair to [the appellant] and his child? [The primary judge] did NOT READ the ORDER AND ENTERED A RULING THAT WILL ADVERSELY IMPACT THE CHILD AND [THE APPELLANT].
7. It is imperative tha [sic] this matter be reviewed by another Judge or a panel of Judges to ascertain whether Judge Turner’s or [the primary judge’s] interpretation of the Order is accurate. [The appellant] resides in the United States and his next mandatory period of possession is the next school break which begins on December 12, 2020 and ends on January 26, 2021. [The respondent] has made it explicitly clear that she does not intend to deliver the child as scheduled and if [the appellant] is required to travel to Australia to pick up his son he will need to be quarantine for 14 days before he is able to attend a hearing. This is very expense and costsly [sic] for [the Appellant], and he cannot afford to travel to Australia and not be reimbursed by [the respondent] just because according to [the primary judge], the parties did not reach agreement, when an agreement for guaranteed time of possession is already in place.
(As per the original)
It will be appreciated that many of those purported grounds are not in fact proper grounds of appeal, but nonetheless it appears as though the pith of the appellant’s complaint is that the primary judge misconstrued the meaning of Order 2(c)(1)(c). Particularly it is said that the primary judge fell into error in concluding that the parties needed to agree in writing prior to the respondent being obliged to make the child available to go into the appellant’s “possession.”

The application for expedition

In his affidavit filed in support of the application for expedition filed 5 November 2020, the appellant said at paragraphs 6 to 10 as follows:
6.Here we have two Australian Judges from the same court who have entered differing ruling on the same matter and your honourable American Judge C who agrees with Turner’s and [the appellant’s] interpretation or the existing order.
7.WE are respectfully asking for an EXPETIDIDED HEARING on this matter, that the existing parenting ORDER be reviewed by a panel of judges and determine which judge’s interpretation of the OREDER is accurate.
8.Find that your honourable Judge’s Turner and C’s were accurate in their interpretation of the ORDER and that the applications for recovery and costs filed on 1 and 2 October be enforced.
9.We also ask that this matter be addressed and resolved EXPEDITIOUSLY to ensure [the appellant] is able to see his son during the December 2020 and January 2021 upcoming school break.
10.[The appellant] is required to purchase a ticket to fly to Australia two week in advance because [the respondent] has made it explicitly clear that she will not make the child available for pickup during the December 2020 school holiday…
(As per the original)
It is apparent therefore, that the purpose behind the appeal is to attempt to clarify the interpretation of Order 2(c)(1)(c) prior to the forthcoming Christmas holidays.
There is no provision, whether in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (“the Rules”), which pertains to the expedition of appeals. However some assistance can be obtained from r 12.10A of the Rules which relates to the expedition of trials. That rule provides as follows:
(1) A party may apply to expedite the first day before the Judge.
….
(2) The court may take into account:
(a) whether the applicant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent; and
(d) whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
(3) If the court is satisfied of the matters in subrule (2), the court may:
(a) set an early first day before the Judge; and
(b) make procedural orders for the further conduct of the case.
(4) For paragraph (2)(d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f) whether the case involves allegations of child sexual, or other, abuse; and
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
It is immediately apparent that no relevant circumstance of the kind inclusively defined in the rule exists here, but the appellant contends that the relevant circumstance which justifies expedition is the prospect of further difficulty in him spending time with the child in the forthcoming Christmas holidays.
However, even if the appeal could be heard and determined prior to the commencement of the Christmas school holidays, it is clear on the face of the appeal itself that it is futile. The application for a recovery order which is the subject of the appeal, was dismissed, and the relevant school holiday period has now passed. It is inconceivable that a court hearing the appeal would, if satisfied that error existed, then make an order for the recovery of the child in relation to a period which has expired.
That much is implicitly conceded by the appellant, who candidly states that he wishes to have an authoritative interpretation of the relevant order, given that on his contention, two Australian judges have interpreted it inconsistently. However that is plainly not correct. The recovery order made on 10 December 2018 by a Federal Circuit Court judge specifically pertained to a period specified in Order 2(c)(1)(c), being the period commencing on 10 December 2018. The application for a recovery order before the primary judge did not relate to an identified period of dates, but rather related to the 2019-20 school year, the dates of which were not specifically stipulated in the State B orders. Rather, that recovery order application was based upon the less than clear order that “[t]he parties agree to adjust [the 2018-2019 ordered dates] as to future school years to reflect the same periods contemplated and will reach written agreement yearly as to those time periods.”
Put simply, there is no conflicting construction between the recovery order made on 10 December 2018 and the primary judge’s order made on 8 October 2020.
It is not the role of an appellate court to give prospective advisory opinions. Its role is necessarily, by statute, constrained to determining whether there is an appealable error in existing orders, and if there is, making or fashioning the appropriate appellate response to it. As desirable as it might be to be able to resolve looming disputes between the parties in advance of them arising, that is not the function of an appellate court.
It therefore follows that the current appeal is futile.
Against that analysis, one turns to consider whether a futile appeal should be given priority to the possible detriment of other cases. The answer is self-evident. It is inimical to the interests of justice and its due administration, for futile appeals to take precedence over potentially meritorious appeals. It therefore follows that the application for expedition must fail.
That said, to assist the parties, I would venture to suggest that the plain meaning of the State B order relevant to this application, is that the dates in school years post 2018-19, were intended to correspond with the location of the dates in the 2018-19 school years. Thus the time in each period is to commence on the Monday of the last week of school term, and conclude on the last Friday of the holidays (in the June/July and September/October periods) or the last Saturday (in the Christmas school holiday period). No other sensible construction was able to be identified by either of the parties appearing before me on the application for expedition.

Costs

In the event that the application was dismissed, the respondent sought no order for costs.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 November 2020.

Associate:

Date: 20 November 2020