Belmont & Flores (No. 2)
[2021] FamCAFC 96
•18 June 2021
FAMILY COURT OF AUSTRALIA
Belmont & Flores (No. 2) [2021] FamCAFC 96
Appeal from: Belmont & Flores [2020] FCCA 3561 Appeal number(s): NOA 1 of 2021 File number(s): BRC 10831 of 2018 Judgment of: TREE J Date of judgment: 18 June 2021 Catchwords: FAMILY LAW – APPEAL – Where the appellant appeals from an order dismissing his application to review a registrar’s decision – Where the registrar listed the appellant’s application for a recovery order to the first day of trial – Where the application for a recovery order relates to a period which has already passed – Where consent orders have been entered into by the parties for the child’s time with the appellant pending travel restrictions being lifted – Where the appeal is futile – Where the appeal lacks merit – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Belmont & Flores [2020] FamCAFC 290 Division: Appeal Division Number of paragraphs: 16 Date of hearing: 17 June 2021 Place: Cairns The Appellant: Litigant in person Solicitor for the Respondent: VM Family Law ORDERS
NOA 1 of 2021
BRC 10831 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR BELMONT
Appellant
AND: MS FLORES
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Belmont & Flores (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Notice of Appeal filed 6 January 2021, Mr Belmont (“the appellant”) appeals from an order made by a judge of the Federal Circuit Court on 21 December 2020 which dismissed his application to review a registrar’s decision to list the appellant’s application for a recovery order to the first day of trial on 23 March 2021. The primary judge confirmed the registrar’s decision by further ordering that the appellant’s application for a recovery order remain listed for mention to the first day of trial, being 23 March 2021.
Ms Flores (“the respondent”) opposes the appeal and seeks its dismissal.
For the reasons which follow, the appeal ought to be dismissed by reason of its futility.
BACKGROUND
The background to this matter can be gleaned from my reasons for judgment delivered in a prior interlocutory appeal judgment concerning these parties in Belmont & Flores [2020] FamCAFC 290, where I said:
2.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.
3.The orders were registered with the Family Court of Australia on 10 October 2018.
4.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.
5.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.
6.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.
That appeal originated from a prior order of the primary judge dismissing the appellant’s application for a recovery order relating to time over the September school holidays. However, following the delivery of my reasons in the interlocutory application for expedition, the appeal was ultimately discontinued by the appellant, given its futility.
Notably, I said the following as to the futility of that appeal:
16.…[E]ven 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.
17.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.”
18.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.
19.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.
20. It therefore follows that the current appeal is futile.
Following those events, on 7 December 2020, the appellant filed a further application for a recovery order concerning the Christmas school holiday period, which was given a listing date by the registrar to the first day of trial of the proceedings listed for 23 March 2021. On 9 December 2020, the appellant filed an application to review the registrar’s decision to list the application to the first day of trial, which review application was listed before the primary judge on 21 December 2021.
On 21 December 2021, for reasons given ex tempore, the primary judge dismissed the application to review the registrar’s decision and confirmed that the application for the recovery order remain listed to 23 March 2021.
That is the decision from which the appellant now appeals.
THE APPEAL
As was explained to the appellant at the hearing of the appeal, the issue of futility again looms large in this appeal. The 2020-2021 Christmas school holiday period has now passed. Furthermore, on 23 March 2021, although the trial did not proceed, consent orders were entered into by the parties on that date, which provide that, until the travel restrictions are lifted between Australia and the United States of America (“USA”), the appellant’s time with the child take place in Queensland only. Further, an order was made that upon the restrictions being lifted, the child spend time with the appellant in the June/July Queensland gazetted school holiday period in the USA.
These subsequent events have rendered the appeal nugatory.
In any event, the ground of appeal contained in the appellant’s Notice of Appeal is not properly cast, nor supported by the appellant’s Summary of Argument. The ground reads “[g]rounds for appeal are based on the facts that suggest the request for review should be dismissed. However the judge did not provide any specific reason for the dismissal…”. The appellant’s Summary of Argument refers to the history of the first instance proceedings dating back to 2018, the alleged breaches of the orders by the respondent, and the consent orders made between the parties in March 2021 in relation to the time the child is to spend with the appellant in future school holiday periods until Covid-19 restrictions are lifted. There is nothing contained in the Summary of Argument to support how the judge failed to give adequate reasons in dismissing the application to review the registrar’s decision.
The primary judge’s reasons for judgment were centred on the COVID-19 pandemic and the travel restrictions in place which make it onerous for the child to spend time with the appellant in the USA. In concluding his reasons, his Honour said:
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 [appellant] 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 [appellant’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 [appellant] would take. In those circumstances the matter remains listed on the first day of trial.
From those reasons, there does not appear to be a basis to suggest his Honour failed to adequately explain why he dismissed the application to review the registrar’s decision.
OUTCOME
The appeal must be dismissed.
COSTS
The respondent did not seek any order for costs against the appellant in the event the appeal was dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 18 June 2021
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