GAMAGE & KUMARA

[2021] FamCAFC 25

FAMILY COURT OF AUSTRALIA

GAMAGE & KUMARA [2021] FamCAFC 25

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the principal issue is the order for the sale of a property – Where the subject property has been sold – Where the appeal is rendered futile insofar as it seeks to appeal against the order providing for the sale and the other orders in relation to effecting that sale – Where the facts propounded in support of the application for leave to appeal are simply inadequate and do not demonstrate any basis for leave to appeal to be granted – Where the grounds of appeal do not identify any appealable error by the primary judge – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Mr Gamage

RESPONDENT: Ms Kumara

FILE NUMBER: MLC 7657 of 2020

APPEAL NUMBER: SOA 93 of 2020

DATE DELIVERED: 18 February 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 February 2021

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 6 November 2020

LOWER COURT MNC: NA – Transcript

REPRESENTATION

THE APPELLANT: In Person

THE RESPONDENT: In Person

Order

1. The Notice of Appeal filed on 19 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 Gamage & Kumara 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
 ADELAIDE

Appeal Number:      SOA 93 of 2020
File Number:            MLC 7657 of 2020

Mr Gamage

Appellant

And

Ms Kumara

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a directions hearing in relation to a Notice of Appeal filed by Mr Gamage (“the husband”) on 19 November 2020, seeking leave to appeal, and if leave if granted, to appeal against orders made by a judge of the Federal Circuit Court of Australia on 6 November 2020.

2. The appeal is opposed by Ms Kumara (“the wife”).

3. The primary judge made a number of orders on 6 November 2020, primarily ordering that a property at Suburb A … be sold, providing for how that was to be effected, and also providing for the distribution of the proceeds of sale.

4. In addition, there were other orders, such as providing for the parties to attend a conciliation conference, for the parties to prepare and file relevant documents for the purposes of that conciliation conference, and there were certain other procedural orders which I need not mention.

5. I have taken the trouble to go through those orders because, for some inexplicable reason, the husband has sought leave to appeal, and if leave is granted, to appeal against all of the orders made by the primary judge on 6 November 2020.  Just to pick one example, for the life of me I cannot see on what possible basis an appeal can be brought against an order providing for a conciliation conference.

6. Clearly though, and having read the transcript of the hearing before the primary judge which doubles for the primary judge’s reasons, the principal issue is the order for the sale of the property.  And that that is the primary issue is also confirmed by the contents of the Notice of Appeal filed by the husband on 19 November 2020.

7. However, the position today is that the house, the subject property, has been sold.  It was sold by auction on 6 February 2021, with settlement due to take place on 15 March 2021.  Thus, the effect of that is, that it renders this appeal futile insofar as it seeks to appeal against the order providing for the sale, and the other orders in relation to effecting that sale.  And I repeat, I do not propose to deal with or address the appeal insofar as it appeals against orders such as providing for a conciliation conference, and other procedural matters.

8. Given that, the appeal simply has to be dismissed because it has no utility, and in any event, the facts propounded in support of the application for leave to appeal are simply inadequate.  They do not demonstrate any basis for leave to appeal to be granted, if the appeal was able to proceed.

9. Similarly with the so-called grounds of appeal, although they would only become relevant if leave was granted. In any event, they comprise a narrative which extends to 15 paragraphs over almost two pages of the Notice of Appeal.  Nowhere, but nowhere in that narrative, or indeed in the five paragraphs which are contained under the specific heading “grounds of appeal” in the Notice of Appeal, does the appellant identify any appealable error by the primary judge.

10. As I said during the submissions today, it seems to me that the husband, who appears without legal representation, simply has no understanding of what an appeal is about, and what is required either to obtain leave to appeal or, indeed, if leave is granted, to be successful in an appeal.

11. The material that he has put in his Notice of Appeal not only fails to reveal any appealable error, much of it is irrelevant to any appeal which could be brought against the orders made by the primary judge.

12. During the hearing I invited the husband to put his submissions to me as to on what basis I should allow this appeal to proceed.  I listened intently to what he said but, again, with all due respect to him, nothing that he said was directly relevant to the appeal.  Nothing that he said went any further in demonstrating any basis for leave to appeal to be granted or, if leave is granted, for the appeal to be successful.

13. That said, primarily for the reason that the appeal now lacks utility, but secondly, because of there being no basis in any event to grant leave to appeal, and I add no basis if leave to appeal is granted for the appeal to be successful, I propose to order that the appeal be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 February 2021.

Associate: 

Date:  24 February 2021