Lancaster and Lancaster and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANCASTER & LANCASTER & ANOR [2019] FCCA 1354

Catchwords:
FAMILY LAW – Parenting – paternal grandmother’s application for time with the children – respondent parents’ application for summary dismissal – reasonable prospect of success – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.45A(2), 60B, div.12A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Stativa & Stativa [2015] FamCAFC 170

Applicant: MS LANCASTER

First Respondent: MR LANCASTER

Second Respondent: MS [A] LANCASTER

File Number: DGC 78 of 2019

Judgment of: Judge Mercuri

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Dandenong

Delivered on: 18 April 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondents: Mr Gates

Solicitors for the respondents: Julie Taylor

ORDERS

1. The initiating application filed by the applicant paternal grandmother on

   
   

   15 January 2019 be dismissed pursuant to section 45A(2) of the

   
   Family Law Act 1975

   (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondent’s costs fixed in the sum of $4,482.

AND THE COURT NOTES THAT:

(A)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 78 of 2019

MS LANCASTER

Applicant

And

MR LANCASTER

First Respondent

MS [A] LANCASTER

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the paternal grandmother for parenting orders in relation to two children [X] born … 2010 and [Y] born … 2013 (“the children”).  The parents of the children are the respondents in these proceedings.  They oppose the application and have sought that the court exercise its power to summarily dismiss the paternal grandmother’s application. 

3. By way of background, I note that the paternal grandmother represented herself in these proceedings.  At the commencement of the proceedings she was asked whether she had taken the opportunity to speak to a duty solicitor, and she responded that she did not need to do so.  By her application filed on 15 January 2019, the paternal grandmother seeks both final and interim orders in the following terms:

   a)that the children live with the respondents; and

   b)that the children spend time and communicate with the paternal grandmother and uncle as follows: 

   i)once each alternate Friday from 4:00pm until 7:00pm;

   ii)by telephone on Wednesdays from 6:00pm until 6:30pm;