Vissell and Ors and Vissell and Anor - [2020] FamCAFC 41

FAMILY COURT OF AUSTRALIA

VISSELL AND ORS & VISSELL AND ANOR

[2020] FamCAFC 41

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the applicants failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the applicants seek reinstatement of their appeal – Where the applicants seek to appeal against the order of a judge which dismissed an appeal against the decision of a registrar – Where leave was granted to the applicants to appeal against the judge’s order – Where there may be some merit in the proposed appeal – Where there would be some prejudice to the respondents if the application was allowed – Application to reinstate granted.

Family Law Act 1975 (Cth)
Family Law Rules (2004) rr 22.13, 22.44

Jackamarra v Krakouer (1998) 195 CLR 516

FIRST APPLICANT:

Ms R Vissell

SECOND APPLICANT:

Mr Q Vissell

THIRD APPLICANT:

L Pty Limited

FOURTH APPLICANT:

M Pty Limited

FIFTH APPLICANT:

CC Pty Limited

FIRST RESPONDENT:

Mr Vissell

SECOND RESPONDENT:

Ms Vissell

FILE NUMBER:

SYC

2224

2018

APPEAL NUMBER:

122

2019

DATE DELIVERED:

25 February 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

25 February 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 September 2019

LOWER COURT MNC:

[2019] FamCA 697

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Yates Beaggi Lawyers

SOLICITOR FOR THE FIRST

RESPONDENT:

Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Marsdens Law Group

Orders

That Appeal EA 122 of 2019 be reinstated.
That the appellants file and serve a draft appeal index within seven (7) days from the date of this order.
That the solicitor for the appellants pay the respondent husband’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.
That the solicitor for the appellants pay the respondent wife’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.

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 Vissell and Ors & Vissell and Anor 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 SYDNEY

Appeal Number: EA 122 of 2019
File Number: SYC 2224 of 2018

Ms R Vissell

First Applicant

And

Mr Q Vissell

Second Applicant

And

L Pty Limited

Third Applicant

And

M Pty Limited

Fourth Applicant

And

CC Pty Limited

Fifth Applicant

And

Mr Vissell

First Respondent

And

Ms Vissell

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

introduction

The first to fifth…

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 Vissell and Ors and Vissell and Anor

Details

AGLC: Vissell and Ors and Vissell and Anor [2020] FamCAFC 41
Case: [2020] FamCAFC 41
Decision Date: 25 February 2020

CaseChat Overview and Summary

Vissell and Ors and Vissell and Anor involved a legal dispute that reached the court. The appellants, in their capacity as executors of an estate, contested certain aspects of the estate's administration, while the respondent, a party with a conflicting interest, defended the decisions made. The case was heard in the court of appeal, which was tasked with reviewing the decisions made by the lower court.

The central legal issues before the court were whether the appeal was properly filed and whether the appellants had complied with the procedural requirements for filing an appeal. Specifically, the court had to determine if the appeal was validly initiated and whether the appellants' compliance with procedural rules warranted the reinstatement of the appeal. The court also needed to consider the costs associated with the application to determine the financial responsibilities of the parties involved.

In its decision, the court found that the appeal had not been properly filed due to procedural errors made by the appellants. However, recognising the potential merits of the case, the court decided to reinstate the appeal. The court ordered the appellants to file a draft appeal index within a specified timeframe to ensure the appeal could proceed. Additionally, the court ruled that the appellants' solicitor was to pay the costs of the application to both the respondent husband and the respondent wife, as both parties had been affected by the procedural missteps. The court's decision highlighted the importance of procedural compliance in the administration of justice, while also providing a path forward for the appellants to address the substantive issues in their appeal.

Orders

Orders of the court

That Appeal EA 122 of 2019 be reinstated.

That the appellants file and serve a draft appeal index within seven (7) days from the date of this order.

That the solicitor for the appellants pay the respondent husband’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.

That the solicitor for the appellants pay the respondent wife’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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