FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Harmon and Traversa & Lindon and Morcos [2025] FedCFamC1A 59
Appeal from: Morcos & Lindon (No 2) [2025] FedCFamC1F 7 Appeal number(s): NAA 50 of 2025 File number(s): MLC 209 of 2020 Judgment of: JARRETT J Date of judgment: 9 April 2025 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –SUMMARY DISMISSAL – Appeal from declaratory order – Appellants beneficiaries of testamentary trust – coversheet of Notice of Appeal naming wrong party as appellant – Where the first respondent sought summary dismissal of the appeal – Where the appellants sought leave to amend Notice of Appeal – Application for summary dismissal dismissed – leave to amend granted Legislation: Family Law Act 1975 (Cth) ss 78, 92
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.23, 2.24, 13.04 and 15.21
Administration and Probate Act 1958 (Vic) s 34
Cases cited: A & GS & Others (2004) FLC 93–199; [2004] FamCA 967
Morcos & Lindon (No 3) [2025] FedCFamC1F 183
Campbell v. Kitchen & Sons Ltd and Brisbane Soap Co Ltd (1910) 12 CLR 513; [1910] HCA 23
Comar & Comar (2020) FLC 93–958; [2020] FamCAFC 99
Connolly v Macartney (1908) 7 CLR 48; [1908] HCA 64
Cuthbertson v. Hobart Corporation (1921) 30 CLR 16; [1921] HCA 51
Estate of Graham [1910] VLR 466
Goodridge & Beadle and Ors [2019] FamCA 709
Hodges Hall & Jovanovic & Markov (1995) 19 Fam LR 24
In the Estate of Dunn [1963] VR 165
In the Marriage of Barro (1982) 8 FamLR 855
In the Marriage of Panayotides (1996) 21 FamLR 446
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93–725; [2016] FamCAFC 153
Re Cockburn’s Will Trusts [1957] 1 Ch 438
Re Ponder [1912] 2 Ch 59
Re Whitechurch [1990] VR 719
Telford v Telford [2003] VSC 8
Will of Holland (1891) 17 VLR 1
Number of paragraphs: 41 Date of hearing: 4 April 2025 Place: Heard in Brisbane, delivered in Adelaide Counsel for the Appellants: Mr Shepherd with Mr Kiernan Solicitors for the Appellants: KHQ Lawyers
Counsel for the First Respondent Mr North SC Solicitors for the First Respondent: Zeno Lawyers Counsel for the Second Respondent: Litigant in person ORDERS
NAA 50 of 2025
MLC 209 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HARMON AND MS TRAVERSA
Appellants
AND: MS LINDON
First Respondent/Cross-Appellant
MR MORCOS
Second Respondent/Cross Appellant
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.Save for the question of costs, the Application in an Appeal filed on 25 March 2025 is dismissed.
2.The appellants have leave to file an amended Notice of Appeal in the form of the document marked as annexure FA-2 to the affidavit of Ms Harmon filed on 28 March 2025.
3.The application for leave to appeal be heard by the…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the appellants should be granted leave to amend their Notice of Appeal, which would correct the error and enable the appeal to proceed. The court also had to consider the application for summary dismissal brought by Lindon and whether it should be upheld. The court needed to determine if the procedural error was fatal to the appeal and whether the appellants' rights to appeal would be prejudiced by the delay in correcting the error.
The court dismissed the application for summary dismissal brought by Lindon and granted leave to the appellants to amend their Notice of Appeal. The reasoning was that the error in the Notice of Appeal did not prejudice Lindon or Morcos and could be corrected without significant delay or prejudice to any party. The court further directed that the application for leave to appeal would be heard by the Full Court concurrently with the hearing of the appeal. The court also dismissed Order 5 in Lindon's Response to the Application in an Appeal, which sought to address procedural issues. The record of the appeal was ordered to be regularised, and the appellants were designated correctly in the appeal record. The first respondent and second respondent were designated as the first cross-appellant and second cross-appellant, respectively.
The court issued several orders to regularise the appeal record, allow for the amendment of the Notice of Appeal, and schedule the hearing of the application for leave to appeal. It also set out a timeline for the parties to address the issue of costs related to the various applications and responses filed in the appeal. The orders ensure that the appeal process can proceed without further procedural missteps, and the rights of all parties are protected.
Orders
Orders of the court
NAA 50 of 2025
MLC 209 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS HARMON AND MS TRAVERSA
Appellants
AND:
MS LINDON
First Respondent/Cross-Appellant
MR MORCOS
Second Respondent/Cross Appellant
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1. Save for the question of costs, the Application in an Appeal filed on 25 March 2025 is dismissed.
2. The appellants have leave to file an amended Notice of Appeal in the form of the document marked as annexure FA-2 to the affidavit of Ms Harmon filed on 28 March 2025.
3. The application for leave to appeal be heard by the Full Court with the hearing of the appeal.
4. Order 5 in the first respondent’s Response to Application in an Appeal filed on 27 March 2025 is dismissed.
5. Any party desirous of moving the court as to costs of:
(a) the Application in an Appeal filed by the first respondent on 25 March 2025;
(b) the Response to Application in an Appeal filed by the second respondent on 27 March 2025; or
(c) the Response to Application in an Appeal filed by the appellants on 28 March 2025
shall, no later than 4.00pm on 16 April 2025 make, file and serve any material and submissions as to the order for costs sought by them.
6. Any party wishing to respond to an application for costs made against them shall, no later than 4.00 pm on 23 April 2025 make, file and serve any material and submissions as to costs.
7. Any submissions in reply to those made pursuant to order 6 hereof shall be filed and served no later than 4.00 pm on 30 April 2025.
8. Otherwise the question of costs be reserved.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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