Gaffney and Erikson and Anor

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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…

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Details
Case
[2011] FMCAfam 1177
Decision Date

CaseChat Overview and Summary

Gaffney and Erikson and Anor is a decision where the court was asked to consider an application by the maternal grandfather of a child, seeking to have contact with his grandchild. The applicants, Mr. Gaffney and his son, filed an application to intervene in the existing family law proceedings between the child’s parents, Ms. Erikson and Mr. Erikson. The parents opposed the application, arguing that the grandfather’s involvement was not in the best interests of the child.

The primary legal issue the court had to address was whether the grandfather had a sufficient connection to the child that would justify him being allowed to intervene in the proceedings. The court also needed to determine whether permitting the grandfather to participate in the proceedings would be in the child’s best interests. The court considered the relevant provisions of the Family Law Act 1975, including section 60CC, which requires the court to consider the best interests of the child as the paramount consideration.

The court dismissed the grandfather's application, finding that he did not have a sufficient connection to the child to warrant his intervention in the existing proceedings. The court was satisfied that the parents were capable of making decisions in the child’s best interests without the need for the grandfather's involvement. The court also found that allowing the grandfather to proceed with his application would not be in the child's best interests, as it could potentially cause the child distress. Consequently, the court restrained the grandfather from instituting proceedings under the Family Law Act without leave of a court.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

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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