Belmont & Flores (No. 2) - [2021] FamCAFC 96

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 2018

APPEAL 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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Belmont & Flores (No. 2)

Details

AGLC: Belmont & Flores (No. 2) [2021] FamCAFC 96
Case: [2021] FamCAFC 96
Decision Date: 18 June 2021

CaseChat Overview and Summary

The appeal in Belmont & Flores (No. 2) was brought by Mr. Belmont, who sought to overturn an order from the Family Court of Australia that dismissed his application to review a registrar’s decision. The registrar had listed Mr. Belmont's application for a recovery order to the first day of the trial. The recovery order pertained to a period that had already passed, and the parties had entered into consent orders for the child’s time with Mr. Belmont pending the lifting of travel restrictions. The appeal was heard in the Appeal Division of the Family Court of Australia.

The primary legal issue before the court was whether the appeal had merit and was not futile. Given the context of the consent orders and the fact that the recovery order pertained to a period that had already elapsed, the court had to determine if the appeal was substantively viable. Another consideration was the prior interlocutory appeal concerning the same parties, which had already been found to be futile.

The court found that the appeal lacked merit and was futile. The reasoning was based on the fact that the recovery order application related to a time period that had already passed, and the consent orders already provided for the child's time with Mr. Belmont pending the lifting of travel restrictions. Additionally, the appeal was considered futile due to its similarity to a prior interlocutory appeal that had already been dismissed. Therefore, the appeal was dismissed with no orders for costs.

In conclusion, the court dismissed the appeal and confirmed that no further orders were necessary, given the futility of the appeal and the prior consent orders already in place.

Orders

Orders of the court

NOA 1 of 2021

BRC 10831 of 2018

APPEAL 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).

Background

Background to the litigation

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 ScheduleExcept 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; andc. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

NOA 1 of 2021 BRC 10831 of 2018
APPEAL 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