Gaffney and Erikson and Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAFFNEY & ERIKSON and ANOR [2011] FMCAfam 1177

FAMILY LAW – Parenting proceedings – applicant maternal grandfather – summary dismissal – no reasonable prospects of success – vexatious proceedings.

Family Law Act 1975, ss.118, 65C, 60CC, 64B, 64C
Federal Magistrates Act 1999, s.17A
Federal Court of Australia Act1976, s.31A
Family Law Amendment (Shared Parental Responsibility) Act2006, s.60B
Supreme Court Act1970, s.84

Vivid Entertainment LLC v Digital Cinema Australia Pty Ltd [2007] FMCA 157
White Industries Australia v Assistant Commissioner ofTaxation [2007] FCA 511
Jacobs v Vale [2008] FMCAfam 641
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60
Church v T Overton & Anor [2008] FamCA 965
Sampson & Jacks [2008] FamCA 176
Bemert & Swallow [2009] FamCA 5

Applicant: MR GAFFNEY

First Respondent: MS ERIKSON

Second Respondent: MR ERIKSON

File Number: NCC 1181 of 2011

Judgment of: Foster FM

Hearing date: 21 September 2011

Date of Last Submission: 21 September 2011

Delivered at: Newcastle

Delivered on: 4 November 2011

REPRESENTATION

Solicitor for the Applicant: Self Represented

Counsel for the Respondents: Mr Cummings

Solicitors for the Respondents: Uther Webster & Evans

ORDERS

1. That the maternal grandfather’s application filed on the 12 May 2011 be dismissed.

2. That the applicant maternal grandfather Mr Gaffney be restrained pursuant to s.118 of the Family Law Act 1975 (“the Act”) from instituting proceedings under the Act with respect to the First Respondent, Ms Erikson, the Second Respondent, Mr Erikson and any children of the First and Second Respondents without leave of a court having jurisdiction under the Act.

3. That otherwise all applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gaffney & Erikson and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1181 of 2011

MR GAFFNEY

Applicant

And

MS ERIKSON

First Respondent

MR ERIKSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These parenting proceedings in relation to the child [X] born [in] 2009. The child is now only 22 months old.

Maternal Grandfathers Application:

1. The applicant is the maternal grandfather of the child and the respondents the child's parents.

2. By application filed on the 12th of May 2011 the applicant sought final orders in relation to the child as follows;

   a)that to the child [X] born [in] 2009 live with the mother and father and spend time with the applicant maternal grandfather of not less than two blocks per week of not less than two hours per block as agreed between the parties and in default of agreement each Tuesday and Thursday from 2 p.m. to 4 p.m.

   b)that to facilitate spending time pursuant to Order 1 herein changeover will be at the McDonald's Family Restaurant at the [omitted] railway station.

3. In the same application of the maternal grandfather sought interim orders in terms identical to the final orders.

Respondent Mother and Respondent Father’s Response:

1. In their…