Simon and Simon
[2012] FMCAfam 948
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMON & SIMON | [2012] FMCAfam 948 |
| FAMILY LAW – Children – father withdrawing from the proceedings – father seeks no ongoing order to spend time with children. |
| Family Law Act 1975 |
| Applicant: | MS SIMON |
| Respondent: | MR SIMON |
| File Number: | ADC 3436 of 2011 |
| Judgment of: | Kelly FM |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 22 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms H Black |
| Solicitors for the Applicant: | Alderman Redman Lawyers |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr T Stephen |
| Solicitors for the Independent Children’s Lawyer | Legal Services Commission of SA |
ORDERS
The children [X] born [in] 2000 and [Y] born [in] 2011 live with the mother who shall have sole parental responsibility for the children’s care, welfare and development.
Upon the father’s oral application, no order for the children to spend time with the father.
All proceedings are dismissed as finalised PROVIDED that parenting issues may be reinstated in the event the father files an Affidavit within 21 days indicating his intention or desire to spend time with the children.
In the event the father does not file an Affidavit within 21 days the appointment of the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Simon & Simon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3436 of 2011
| MS SIMON |
Applicant
And
| MR SIMON |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.
These proceedings relate to the care arrangements for the parties’ two children [X], aged 11 years and [Y], who is not yet two years old.
Without going into the whole background of this matter, the Court has been dealing with the parties’ parenting dispute. The children have been living with their mother and spending time with the father, albeit much less time than he was seeking.
The father has an entirely negative view of the mother. He believes that she actively undermines his role in the children’s lives and that she does not support their co-parenting relationship. His negative view of the mother is not necessarily confirmed through any of the independent information before the Court in terms of information from Mr B, [X]’s counsellor, or from Ms H’s family assessment report.
The father informs the court today that he is now stepping away from these proceedings and, indeed, from the children. He says that he is doing so under a situation of threats and harassment from associates of the mother, threats that have been made to him and to other members of his family. These concerns have been raised today by the father; they are not set out in any sworn affidavit.
The father has indicated that he does not seek the opportunity to pursue his concerns through the Court system or to place any formal evidence before the Court and says that his decision in that regard is, again, because of the threats he has received.
The mother denies any knowledge of these matters. She remains willing to continue the present parenting arrangements for the father’s time with the children. The Court has no way of determining the truth or otherwise of the father’s allegations today.
This Court’s jurisdiction is to determine disputes between parties. When one parent is choosing to step away from the Court process then the Court’s role becomes more limited. While the Court can encourage and give that party every opportunity to reconsider their position, nonetheless, we cannot require a party to stay in the Court system if they choose not to do so, for whatever reason.
It is clear that, despite the mother’s concerns about Mr Simon, she nonetheless has supported [X] spending regular time in the father’s care. It is clear that there exists a meaningful relationship between [X] and the father and one would expect an equally significant relationship would develop for [Y] as she grows up. However, the father says that his safety concerns are too great and effectively overwhelm his desire to maintain a role in his children’s lives.
I am anxious to give the father every opportunity to re-consider his position in that regard, but if the father chooses to step away, that is his decision to make. The father has heard Mr Stephen’s proposal of simply adjourning these proceedings for a few weeks but he does not seek to take up that option and would rather have the proceedings finalised today.
In those circumstances the mother is seeking orders that the children live with her and that she have sole parental responsibility for their welfare. In the absence of any competing application from the father I am inclined to make final orders today, as sought by her. There is little benefit in keeping the proceedings on foot, in light of the father’s position today.
However, I will delay discharging Mr Stephen’s appointment for a period of 28 days. I will give the father this period of time to consider his options more fully and carefully. In the event the father files an affidavit indicating he wishes to resume a role in the children’s lives then the proceedings may be reinstated.
I consider this is appropriate, taking into account that it is in the best interests of the children to have the possibility of an ongoing relationship with their father and provided that he wants to resume his role in their lives. If the father does not file an affidavit then the proceedings are finalised and Mr Stephen’s appointment will be discharged.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 7 September 2012
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