BEAUCHAMP & BEAUCHAMP
[2019] FCCA 1289
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUCHAMP & BEAUCHAMP | [2019] FCCA 1289 |
| Catchwords: FAMILY LAW – Parenting application brought by the Father resisted by the Mother on the basis of the rule in Rice & Asplund – claim by Father that he is no longer able to afford to pay private school fees but in circumstances where he infers that if the children spent more regular time with him he would be able to contribute to the private school fees – the Mother also sought to amend the final Orders – either Rice & Asplund applies to both applications or to neither of them – the Mother cannot rely upon that Rule to thwart the Father yet herself seek to change the final Orders. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157; (2015) FLC ¶93-640 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 |
| Applicant: | MR BEAUCHAMP |
| Respondent: | MS BEAUCHAMP |
| File Number: | CAC 1901 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 27 November 2018 |
| Date of Last Submission: | 12 December 2018 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the Respondent: | Watts McCray Lawyers, Canberra |
ORDERS
THE COURT NOTES THAT:
(A)Both parties separately sought Orders as reflected in Order 1 below regarding [X]; accordingly,
ON A FINAL BASIS, THE COURT ORDERS THAT:
(1)By consent, the child, [X] (born: … 2004), is to spend time with the Applicant Father in accordance with her wishes.
(2)Each party is restrained from discussing these proceedings with or in the presence of the children, and shall take all reasonable steps to ensure that no other person does so.
(3)These parenting Orders are to be notified to the Child Support Agency by both parents.
(4)There be no Order as to costs.
(5)All extant Applications be dismissed and the matter finalised and removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Beauchamp & Beauchamp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1901 of 2009
| MR BEAUCHAMP |
Applicant
And
| MS BEAUCHAMP |
Respondent
REASONS FOR JUDGMENT
Introduction
For present purposes, the following basic facts will suffice concerning the long-standing litigious contests between the parties regarding parenting matters concerning their two children. The two children in question are [X] (who turns 15 in … of this year), and [Y] (who will turn 13 in …). [Y] has some special needs.
The Father has re-married and has two children from his new relationship, [A] (aged 8) and [B] (aged 4 or thereabouts). The Mother has re-partnered with Ms C. Together they have a daughter, [D] aged approximately 4½.
In general terms, the Father seeks to have the Court re-visit final consent Orders made on 8th July 2014. His primary argument is that his circumstances are such that he cannot now afford to pay the private school fees that he is obliged to pay under the 2014 Orders. Indeed, primarily, his focus is upon those Orders that relate to the children attending a nominated private school and the associated school fees.
Also in general terms, the Mother seeks to have the 2014 Orders continue to apply by virtue of the operation of the rule in Rice & Asplund.[1] She also seeks to refine or re-work the 2014 Orders to provide for the children to spend time with the Father in accordance with their wishes. This is because the relationship with their Father has totally broken down.
[1] Rice & Asplund (1979) FLC ¶90-725.
Very curiously indeed, both parties now seek identical Orders that provide for [X] to spend time with the Father in accordance with her wishes.
In such circumstances, it might therefore be asked (somewhat rhetorically) how can there be a Rice & Asplund issue (as the Mother submits as the primary basis for her resistance to the Father’s Application) if both parties, in different ways, are seeking Orders that are genuinely different from the final Orders made in July 2014?
Put another way, it might reasonably be argued that it is legally (and otherwise) illogical to seek to have the Father’s Application dismissed (as the Mother submits) on the basis of the application of the principle or rule in Rice & Asplund, but at the same time seek to have the July 2014 Orders varied as the Mother would wish and not meet the same hurdle.
As a general observation, as a matter of principle, (a) either the rule in Rice & Asplund applies or it does not, and or (b) if both sides seek a variation of the previous final Orders, why does that mutual seeking of a variation, albeit in different ways by each parent, by and of itself not render the rule in Rice & Asplund nugatory?
Further, if it be the case that both parties are seeking to have the Court make Orders that vary the July 2014 Orders, and thereby presumably the Rice & Asplund hurdle is no longer an impediment, is it permissible for one (or both parties) to seek to maintain and to enforce only one of the July 2014 final Orders?
Orders Sought by the Applicant Father
The Applicant’s Orders Sought were set out in his Initiating Application filed on 18th December 2017. As is readily apparent, although the Father’s focus related primarily to the issue of “school and school fees”, his Orders sought are significantly wider than these two related, discrete issues. His Orders sought were as follows:
Final Orders Sought
1) That all previous orders in relation to the children are discharged.
2) That the Father and Mother have equal shared parental responsibility in relation to the children, [X] (born … 2004) and [Y] (born … 2006).
Living Arrangements.
3) That the children live with each parent as follows:
a) With the Father:
i.Week 1: commencing 3.15 pm Wednesday until 3.15pm Monday.
b) With the Mother at all other times.
c) Or as mutually agreed between the parties in writing.
d) [X] may spend time with the Father as she chooses.
4) If not at school, unless otherwise agreed between the parties, all changeovers shall take place at the residence of the parents with the parent who is about to commence care collecting the children.
5) Notwithstanding these orders, the children shall spend time with their parents during Term One school holidays as follows:
a) With the Father from 3.15pm on the last day of Term One until 5.30pm on the second Saturday of the school holiday period.
b) With the Mother from 5.30pm on the second Saturday until 3.15pm the first day of Term Two.
6) Notwithstanding these orders, the children shall spend time with their parents during Term Two school holidays as follows:
a) In EVEN numbered years, with the Father from 3.15pm on the last day of Term Two until 5.30pm on the third Sunday of the school holiday period (2 weeks). With the Mother from 5.30pm on the third Sunday until 3.15pm on the first day of Term Three (1 week).
b) In ODD numbered years, with the Father from 3.15pm on the last day of Term Two until 5.30pm on the second Sunday of the school holiday period (1 week). With the Mother from 5.30pm on the second Sunday until 3.15pm on the first day of Term Three (2 weeks).
7) Notwithstanding these orders, the children shall spend time with their parents during Term Three school holidays as follows:
a) In EVEN numbered years, with the Father from 3.15pm on the last day of Term Three until 5.30pm on the second Saturday of the school holiday period. With the Mother from 5.30pm on the second Saturday until 3.15pm on the first day of Term Four.
b) In ODD numbered years, with the Mother from 3.15pm on the last day of Term Three until 5.30pm on the second Saturday of the school holiday period. With the Father from 5.30pm on the second Saturday until 3.15pm on the first day of Term Four.
8) Notwithstanding these orders, the children shall spend time with their parents during Easter as follows:
a) In EVEN numbered years, the children shall spend time with the Father from 3.15pm on Thursday immediately before Good Friday until 3.15pm on Tuesday immediately following Easter Monday.
b) In ODD numbered years, the children shall spend time with the Mother from 3.15pm on Thursday immediately before Good Friday until 3.15pm on Tuesday immediately following Easter Monday.
9) Notwithstanding these orders, the children shall spend time with their parents from last school day of Term Four to New Year’s Day, as follows:
a) From 3.15pm on the last day of Term Four until 3.15pm Christmas Eve, care arrangements will continue as per Order 3.
b) In EVEN numbered years, with the Mother from 3.15pm on Christmas Eve until 3.15pm on Christmas Day and with the Father from 3.15pm Christmas Day until 5.30pm Boxing Day, with the Mother from 5.30pm Boxing Day until 5.30pm 1 January (or as mutually agreed).
c) In ODD numbered years, with the Father from 3.15pm on Christmas Eve until 3.15pm on Christmas Day and with the Mother from 3.15pm Christmas Day until 5.30pm Boxing Day, with the Father from 5.30pm Boxing Day until 5.30pm 1 January (or as mutually agreed).
10) Notwithstanding these orders, the children shall spend time with their parents during January and February school holidays, as follows:
a) In EVEN numbered years, with the Father from 5.30pm on 1 January until 5.30pm on 16 January and with the Mother from 5.30pm on 16 January until 3.15pm, the first day of classes of Term One.
b) In ODD numbered years, with the Mother from 5.30pm on 1 January until 5.30pm on 16 January and with the Father from 5.30pm on 16 January until 3.15pm the first day of classes of Term One.
c) For the purposes of sub-paragraphs a. and b. of above, if the children attend the first day of classes of Term One on different days, then the first day of classes is deemed to be the first day for either of the children.
11) The pattern of Order 3 will continue during the school holidays only to determine with whom the children spend time with after the end of the school holidays, but orders 4 – 10 and their sub-paragraphs will be applicable during the school holidays.
12) Notwithstanding these orders, in relation to Mother’s Day and Father’s Day, the children shall spend time with the Mother on Mother's Day and the Father on Father's Day from 5.30pm Saturday immediately prior to Mother’s Day or Father’s Day until 8.30am the following Monday.
13) Notwithstanding these orders, in relation to birthdays, the children shall spend the respective period as follows:
a) On the day of each child’s, and each sibling’s birthday, both children will spend time with the parent they are not with (non-care parent) from 3.15pm until 5.30pm on a school day or 2.00pm until 6.00pm on a non-school day, with the non-care parent being responsible for collection from school or the care parent’s home and drop-off to the care parent’s home.
b) For each parent’s birthday from 3.15pm on the day preceding their birth date until 3.15pm the day following their birth date, if the children are in Canberra.
14) Notwithstanding these Orders, the children shall spend time with the Mother from 3.15pm on the day of Thanksgiving (4th Thursday in November each year) until 3.15pm the following day.
15) Notwithstanding these Orders, in the event where a public holiday falls on a Friday or Monday the parent who normally has care over that weekend will have the children from Thursday 3.15pm until 5.30pm on Monday.
Communication.
16) The parent the children are not with may communicate with the children by telephone each Tuesday, Thursday and Sunday between 5.00pm and 7.00pm.
17) Each of the Mother and the Father shall facilitate the children telephoning the other parent or members of the other parent’s family at all reasonable times so requested by the children when in their respective care.
18) Each of the Mother and the Father are at liberty to telephone the children, between 7.30am and 8.30am on the morning of their birthday, if a school day, or between 9.00am and 10.00am if not a school day; and between 9.00am and 10.00am Easter Sunday morning and Christmas morning.
19) Each of the Mother and the Father shall provide privacy to the children when making or receiving telephone calls from the other parent, and each of the Mother and the Father are hereby restrained from monitoring, recording, listening into or reading any communication between the child and the other parent or any other family member, or from permitting any other person to do so.
20) The Mother and the Father shall keep the other informed of a current residential landline, mobile telephone number and current email address.
Medical and health issues.
21) The Mother and the Father shall keep each other informed, in a timely manner, but forthwith in the event of any emergency, of:
a) the names and addresses of any treating medical, dental or other allied health practitioners that treat either of the children and this Order expressly authorises such practitioner/s to provide each parent with information that they are lawfully able to provide about the children, and
b) the time and dates of any medical, dental or other allied health appointment and each parent is at liberty to attend any such appointment;
22) The Mother and the Father shall equally share the agreed or advised medical, dental and other allied health costs of the children with each parent to pay their share in advance or reimburse the other within 48 hours of receipt of an invoice from the other parent.
23) The Mother, the Father and associated immediate family are at liberty to visit a sick or injured child in hospital or other professional care facility.
Extra-curricular activities.
24) The parents shall not enrol the children in extra-curricular activities that are held on the days of the other parent’s care period unless agreed between the parties and it is noted that the parties will share the cost of the agreed extra-curricular activities equally.
25) Each of the Mother and the Father shall keep the other informed, in a timely manner, of all events involving the children.
26) Each parent may attend agreed and jointly supported sporting events and extra-curricular activity events of the children pursuant to Order 24, including sporting games/competitions, and all school events to which parents are normally invited or performances/concerts.
27) Except as provided under order 26 only, the parent that the children are not living with at the time will not attend sporting and extracurricular activities involving the children including lessons, sporting training, rehearsals and the like.
Schooling.
28) The children will attend School E until completion of Year 12, unless otherwise agreed in writing by the parents.
29) Notwithstanding Child Support payments:
a) each parent shall be responsible for school fees and, related, agreed within school time activities, at respective care percentages, as indicated by the Child Support Agency.
b) each parent will be responsible for the purchase of school uniforms for their respective homes for both children.
c) the parent who has the children within their care from 16 January as per Order 10 sub-paragraphs, will be responsible for purchasing and bearing the full cost of the required school stationary supplies, as indicated by the school, for both children. This arrangement is alternated each year.
Overseas holidays.
30) The parents are at liberty to take the children interstate or overseas during such periods that the children are with each parent as provided in these orders providing that, for overseas travel, the parent intending to take the children overseas provide the other with a full itinerary and telephone contact details not less than 30 days prior to their departure.
31) Notwithstanding any other order, each parent may take the children overseas for a period of up to 28 days, or such other period of time as agreed between the parents, once in any 2 year period, such time to include a full period time the children are with such parent under orders 5, 6, 7, 8, 9 or 10 (including sub-paragraphs).
32) Where such travel pursuant to Order 31 is proposed, the parent proposing to travel will advise the other parent not less than 3 months prior to the proposed date of travel.
33) The Mother and the Father shall alternate the responsibility for and payment for the children's Australian Passports and shall retain them for safekeeping purposes during the period of currency, with the Mother to be the first to arrange, pay and hold the children's Passports.
34) For the purposes of these Orders the Mother and the Father shall sign and return to the requesting parent within 24 hours of being requested to do so, all documents necessary to effect the issuing of the children's Passports.
35) Where the children are to travel overseas under Order 31 or 32 if the non-travelling parent has the passports of the children the non-travelling parent shall provide the passport to the travelling parent within 7 days of any request.
Other Matters.
36) The Mother and the Father will each refrain from denigrating the other, or members of the other's family, to or in front of the children, nor allow any other person to do so.
37) A communications book already purchased by the Mother and used currently will be continued to be used by the Mother and the Father to maintain a record and notice of the children’s activities, appointments, commitments, health and the like; with the communication book to pass between the parents with the children.
38) Forthwith after the date of these Orders the father and [X] will attend upon a professional counsellor in the Town F area to assist with the reinstatement of the relationship between them. The father will pay any costs associated with such appointment.
39) Each parent is hereby restrained from using a surname other than “Beauchamp” for the children without written consent of the other parent.
40) That all extant applications be dismissed.
41) That each party pay and be responsible for their own costs.
Orders Sought by the Respondent Mother
The Respondent’s Orders Sought were set out in the Amended Response filed on her behalf on 28th June 2018. As is also readily apparent (and as earlier mentioned), on the one hand, the Mother seeks to have the Father’s Application dismissed by application of the rule in Rice & Asplund, but on the other hand, she also seeks very extensive, revised parenting Orders in the following terms:
Final Orders Sought
1) That the Father's Initiating Application, filed 13 December 2017, be dismissed.
2) That all prior parenting orders in relation to the children [X] (born … 2004) and [Y] (born … 2006) ("the children") be discharged.
3) That the Mother and the Father have equal shared parental responsibility for the children.
4) That the children live with the Mother.
5) That the children spend time with and communicate with the Father at all times in accordance with their wishes.
6) That the Mother encourage and facilitate the children spending time with Father, including facilitating the children's attendance at therapeutic counselling mutually agreed upon by the parties.
7) That the Father and Mother are at liberty to telephone the children at all reasonable times the children are not in their respective care, and the other parent is to encourage and facilitate the children to take such calls and to provide the children with privacy when taking such calls and each parent is restrained from monitoring, recording, listening into any such calls or allowing anyone else to do so.
8) That the Father and the Mother shall facilitate the children telephoning the other parent, or members of the other parent's extended family, at all reasonable times so requested by the children or either of them.
9) That the Mother and the father shall keep the other informed at all times of a current residential landline, mobile telephone number and current email address.
10) That the Mother and the Father shall keep each other informed in a timely manner of all health, educational and/or developmental issues relating to the children and shall forthwith notify the other in the event of any emergency involving the children or either of them, including any urgent appointment or hospitalization, the nature of the issue and the location and time of appointment or hospitalization and each parent is at liberty to attend all medical appointments and hospitalisations. This order expressly authorises the practitioner/s to provide each parent with information that they are lawfully able to provide about the children.
11) That the children shall continue to attend the School E until they each complete Year 12, unless otherwise agreed in writing by the parents and not withstanding any Child Support Payments, each parent shall continue to be responsible for one half of all school related fees and all other associated School E costs.
12) That the Father forthwith attend to payment of all his current arrears of school fees payable to the School E.
13) That the children may travel overseas with their parents, but a full itinerary must be given to the non-travelling parent within one month of travel.
14) That the Mother is responsible for purchasing and holding current passports for the children, and if the Father has indicated plans to travel overseas with the children then the Mother shall provide the Father with the children's passports within seven days of such request and the father shall return the children's passports to the Mother within seven days of returning from overseas travel with the children.
15) That the Father shall sign and return to the Mother within 24 hours of being requested to do so, all documents necessary to effect the issuing of the children’s Passports.
16) That the Court notes that the Father is at liberty to arrange a meeting with the children on one occasion each fortnight at a public location for the children, the Father and their half siblings, [A] and [B] Beauchamp, to spend time together, and that the Mother shall encourage and facilitate the children to attend such meeting. For the purposes of this notation the Father shall provide the Mother with a minimum of 10 day's notice of any proposed date, location and time for such meeting
17) That the Father shall pay the Mother's costs of and incidental to these proceedings.
The s.11F Report of Ms G (19th July 2018)
This short Report of Ms G, which I will admit into evidence as Exhibit 1, was ordered following the Father’s Application, filed on 18th December 2017, to vary the 2014 Consent Orders. Relevantly sets out areas of dispute between the parties and important observations from the children. I set out in full from pars.21 and following of that Report:
THE CHILDREN
[Y] aged 11 years
21) [Y] is in Year 6 at School E. He reported that, what he enjoys about the school, is “having good friends; the school understanding my autism, and giving me a good education so that I don’t have to do delivery work and I can do studies instead. It is fun and supportive with really nice teachers.”
22) When spending time with his mother, [Y] said that, he feels safe, is not punished, and believes his mother understands and supports him in the decisions he makes. [Y] said that he can trust his mother never to hurt him, and his mother trusts him to do things too, such as ride his bike to school. The only thing that [Y] said he did not like about spending time with his mother, are the video game restrictions that she imposes.
23) When asked about Ms C (his mother’s wife), [Y] said that, “she is funny and fun to have around, and she is strict when she needs to be.” He said that Ms C “looks on the bright side and loves me ([Y]).”
24) About spending time with his father, [Y] said that, he enjoyed being with his younger brothers for “boys nights”. [Y] said that, what he did not like about spending time with his father, was “being abused and being treated like I didn’t matter.” By this, [Y] meant being grabbed by the wrist, which he said resulted in a fracture, and being “flicked” on the back of the neck by his father. He said that, Ms Beauchamp swore at him, and called him a “fucking idiot” and she claimed that he and [X], “just bitched and moaned” when spending time at their father’s house.
25) When asked about feeling sad, [Y] said that, he feels sad when “Dad is being an idiot and won’t let me see the boys ([A] and [B])”, or when he is bullied at school.
26) [Y] reported feeling scared and worried only when he is left alone with Ms Beauchamp.
27) [Y] said that, when he is concerned about anything, he tells his mother or Ms C, or he punches his teddy bear.
28) When asked about spending time with his father, [Y] said that, he would like to spend time on “special days such as Father’s Day and birthdays, or “just when I feel like it”. He said that, he would consider overnight time with his father on some Saturdays until Sunday morning, before his sports game begin on Sunday morning. About his father attending school or extra curricula activities or events, [Y] said, “I don’t want him attending anything that he hasn’t paid for. He just wants all the glory and none of the effort. It’s not fair that Mum has to pay for everything.”
29) [Y]’s wishes for his family are: “Mum to get paid Child Support Allowance (CSA); to see my little brothers; and, to get my stuff back from Dad’s because it was bought by other people for me, not to be left at Dad’s if I’m not there.” [Y] said that the items he would like to collect from his father are photographs of his childhood, and the ashes of the deceased dogs.
30) [Y]’s message for the Judge is: “Dad tells lies”.
[X] aged 13 years
31) [X] is in Year 8 at School E, and likes the school because she has good friends there, it is a safe and happy environment, and the teachers are “great”.
32) About spending time with her mother, [X] said that, it is safe, welcoming and her mother “treats us very well”. She likes that the family goes camping, has adventures and they have travelled to England and the United States. [X] said that her mother takes care of her, and makes time for her, saying “it just feels like home there”.
33) [X] said that there was “nothing much” she liked about spending time at her father’s home. She said that she often spent more time with Ms Beauchamp, than with her father, saying, “Dad would do stuff with the boys and I would be left alone with Ms Beauchamp”. About time with her father, [X] said that, she could not remember very well, “but I liked it when he was acting like a Dad, and that was a very long time ago.”
34) [X] said that, what she did not like about spending time at her father’s home, was not feeling safe. She described being physically and verbally abused by both her father, and Ms Beauchamp. [X] alleged that her father would sometimes twist her head around, and Ms Beauchamp flicked her on the back of the neck.
35) [X] said that she would like to spend time with her brothers and father in a park, but does not want to spend overnight time with her father. She said that, she would like [A] and [B] to attend some of her school and performance activities.
36) [X] said that she feels sad that she does not spend time with [A] and [B]. She said that she is worried that her father will hurt her emotionally, and scared that Ms Beauchamp will hurt her physically. [X] explained that she would like her father to apologise for “not being fair, and not being there for me, and not listening to us.” She said that, if her father apologised, she would be more open to having a relationship with him, although she does not want him to apologise only to repair their relationship. [X] reported that she will not attend counselling with her father as suggested by him.
37) [X]’s wishes for her family are: “that my parents get on; that I could live there (at her father’s home) without feeling scared or hurt; that I could see my little brothers; and, we could stop coming to Court.”
FUTURE DIRECTIONS
38) [X] and [Y] both appear ambivalent about re-establishing a relationship with their father. It seems likely that they have each been emotionally hurt by their perception that the father has abandoned them in favour of his new family. They believe that their father’s home is not a safe environment in which to spend time, due to the alleged behaviours of both the father and Ms Beauchamp.
39) It appears that the parents have quite different attitudes and values, that impact on their parenting approaches and financial choices. These are unlikely to change. It seemed evident that the children are privy to information about the dispute, especially in regard to the payment of school fees. This has further damaged the relationship between the children and the father, as well as unsettling the children in regard to their enrolment at their current school.
40) [Y] has indicated a willingness to spend overnight time with his father, as long as his father is at home with him. [X] may be open to spending more time with her father in the future, if her trust in his ability to protect her emotionally, and physically, is restored.
41) [X] and [Y] have indicated that they miss their younger siblings and would like to spend more time with them. This is perhaps a conduit for the father to re-establish his relationship with [X] and [Y].
42) It is suggested that the father, with [A] and [B], spend regular mutually agreed time together with [X] and [Y], initially in a park or another agreed location for short periods, without Ms Beauchamp present.
43) By mutual agreement, the father may wish to attend some of the [Y] and [X]’s school activities, accompanied by [A] and [B].
Among many observations made by Ms G, she noted that the children are clearly privy to the detail of the dispute between their parents. This includes matters of finance. Such matters are clearly having, according to Ms G, an adverse impact on the children’s relationship with their Father. Those matters should never have been discussed with the children. Presumably their primary or only source of that information was the Mother. If this be the case, whatever encouragement she gives to the children regarding their relationship with the Father is unfortunately heavily undercut by providing the children with adverse information about their Father regarding matters in dispute between the parents, particularly concerning financial issues.
In the current circumstances, and given the untested nature of the evidence in this regard, I cannot make any formal finding. I observe however that it cannot be disputed that the children (a) know about financial tensions between their parents and (b) have drawn adverse inferences (if not worse) against the Father as a result. His relationship with them is severely strained if not poisoned. Indeed, in his submissions set out below, the Father refers specifically to his desire to re-establish his relationship with both children. If a final hearing were to occur, the establishment of such discussions between the children and the Mother could/would very likely have not insignificant consequences.
Moreover, given how little time the children have spent with the Father, especially in recent times, the overwhelming inference is very likely to be that the children’s knowledge of financial matters as part of the larger dispute between their parents, must have come from the Mother. As such, the consequences may (as already observed) be severe.
Submissions by the Applicant
The Applicant filed written submissions in relation to the rule, or principle, in Rice & Asplund on 10th December 2018, which were as follows:
1) I write in response to Your Honour’s request as to the consideration of the Rule of Rice & Asplund (1979) FLC 90-725 and its applicability in the circumstances, along with considerations for relationship repair.
2) I believe that the Rule of Rice & Asplund has been met in regards to material changes in circumstances for the following reasons:
a) Care arrangements have changed substantially since the orders were made, despite my historically strong desire for care to have continued as originally ordered.
b) The changes in care have resulted in a significant change in child support being paid, by me, through Child Support Agency payments, thus causing a substantial change in my financial situation.
c)
If the current orders are not changed through the removal of order 29(a), to reflect the current circumstances, I will continue to be unable to meet my obligations for [X] and [Y] along with providing for my two younger children.
Please see attached a copy of my family budget indicating our financial situation.
3) I note there has been a previous ruling (Stewart & Stewart [2017] FamCAFC 67) in relation to the obligations of parents to pay private school fees, particularly where a parent did not have the capacity to pay the fees and that the resultant costs of private schooling were not affordable for the parents.
4) The resultant effect of the extant orders and current circumstances of care are that I am unable to pay school fees, as per clause 29(a), along with the increased child support payments. Further to this, the Child Support Agency advise that they cannot consider payments for private school fees as ‘non-agency’ payments, due to the wording of the current orders.
5) I note that as Ms Beauchamp has also proposed for elements of the orders to be changed, in her amended response dated 28 June 2018, both parties appear to consent to the rule of Rice & Asplund having been met, and there being a need to change the orders. I believe that through changes being made and the establishment of a set of orders that are more likely to reflect the situation from here on, there should be no further requirement of any future attendance by either party on the court.
6) I have a strong desire to re-establish my relationship with [X] and [Y]. I believe that unless there is a change to the orders that supports such contact, that the proposal is unlikely to be followed. Regardless, contact in line with that proposed will not result in a change in my financial situation, which is the principle tenet under which I believe the Rice & Asplund test has been met.
7) I acknowledge the concerns expressed during the hearing regarding ‘what happens’ if the mother cannot afford the school fees following the removal of clause 29(a). I have no desire to create a situation that is unmanageable for Ms Beauchamp and her resources, so I further suggest removal of clause 29 (and all subclauses), thus allowing Ms Beauchamp, as primary carer for [X] and [Y], to determine their ongoing schooling needs.
8) In summary, in the context of Rice & Asplund, I believe the changes in circumstances as related to both care and financial obligations, as outlined above, are both significant and substantial enough that the threshold has been met and therefore warrants the court revisiting the orders, with the principle element of removing order 29/29(a), but also adding orders relating to the children having contact with me. In making said orders, this does not absolve me of my financial obligations in relation to providing for my children, but will reduce the potential for any further attendance by either party on the court.
9) In relation to my relationship with [X] and [Y], I believe the path to reconciliation to be a long one. Notwithstanding this, I hope to rebuild my relationship with both children. Noting the recommendations made by Ms D, family consultant, in her report of 12 July 2018, the following suggestions are made:
a) Monthly gathering at a mutually convenient location, as agreed between the parents. I would like to propose the first Sunday of each month between 10:00am-11:00am (with this time to be extended progressively by agreement between the parties). The Father and all four children to attend.
b) All children are at liberty to contact each other by phone, at any reasonable time.
c) The father and his family will continue to attend [X] and [Y]’s school, acting and other extra-curricular events, as reasonable, and when they are aware of such an event.
d) From January 2020, consideration to be given to counselling sessions between the father, [X] and [Y].
10) In closing, I believe the Rule of Rice & Asplund has been met through significant changes to care arrangements for both children and the financial implications resulting from such changes. On this basis, I seek to have the current Orders amended.
Submissions by the Respondent
Written submissions were filed on behalf of the Respondent Mother on 12th December 2018 in relation to the relevant threshold rule. These submissions were as follows:
1) Final parenting orders were made by consent of the parties on 8 July 2014, subsequently amended by further consent orders on 18 December 2014, with respect to the 2 children of the relationship, [X] (now aged 14) and [Y] (now aged 12).
2) Pursuant to those Orders the children attend School E and the parties are to equally share the costs of such schooling with such costs to be in addition to any assessment for child support under the Child Support legislation. The father paid both child support and his half share of the school fees post the making of the Orders until early 2018.
3) The father is now $10,723.01 in arrears of payment of school fees (Ref para 9 of Mother's affidavit, field 26 November 2018) and the children's continued placement at School E is in jeopardy.
4) In his Initiating Application, filed 13 December 2017, the father seeks a final order that both children attend School E until they respectively complete Year 12. The case of Stewart referred to by the father in his Submissions is distinguished on that basis.
5) The father's position in these proceedings is that he only pay school fees in an amount proportional to the level of care as determined by the Child Support Agency. The mother's position is that the children are attending the school that both parties intended for their children, and consequently at which both parents still want for them, and that the Orders of 8 July 2014 for equal payment of school fees be enforced against the father.
6) The father brought an application to the Child Support Agency seeking a change of assessment based on hardship grounds. His application was considered, determined and rejected. The father did not seek a review by the AAT. The father did not bring an appeal against the decision of the Child Support Agency. The father has not brought an application under the Child Support legislation in these proceedings before the Court.
7) Put simply, the father's case is his alleged inability to continue to pay his half share of the school fees for the children.
8) The first problem for the father, it is submitted, is that he is unable to meet the threshold question raised in Rice v Asplund. There has been no substantial change in circumstances warranting a review of the consent orders made on 8 July 2014. The father relies on the change of care that has occurred post the making of the original orders. The orders in relation to the payment of school fees were not conditional and did not qualify or place limits on them. A change to care arrangements in the future was reasonably foreseeable at the time of the making of the Consent Orders.
9) The other problem for the father, it is submitted, is that the material filed by him actually confirms his ability to pay his share of the school fees. On the last occasion this matter was before the Court we made submissions to your Honour identifying where we say the father made errors in his Financial Statement. But additionally, on a call pursuant to a Notice to produce, the father provided a copy of a recent payslip which revealed: (a) the superannuation claimed by the father in his Financial Statement is the superannuation guarantee levy; (b) the father has post tax deductions of $214.46 and pre tax deductions of $645.27 per fortnight for his leased motor vehicle, and (c) confirms that the father has purchased additional annual leave – all of which goes to increase the otherwise net disposable income shown in the summary in father's Financial Statement.
10) Significantly, the father's payslip shows that the father has a yearly gross income of $133,500 per annum, yet child support is only based on his Taxable Income amount of $107,937, being $25,563 that is not taken into account. The father has been able to achieve this through salary sacrifice.
11) Your Honour is referred to para 8 of the mother's affidavit filed 26 November 2018 and Annexure "A" referred to therein, and the assessment of Dr J in relation to [Y] and the need to maintain stability and security for him at School E.
12) The mother reports that the father, the children and the children's half siblings met on 8 December 2018 at the instigation of the mother. It is hoped the father will continue to attend and bring the half siblings to further get togethers.
13) The mother seeks orders as per her Amended Response filed on 28 June 2018. In making Orders 1 and 12, the mother seeks that the father be given a set period in which to either pay the amount of the school fee arrears in full or make satisfactory arrangements with the Bursar of the School E as to ensure the children's continued enrolment at such School, and in default that the Court issue a Third Party Debt Notice addressed to the employer of the father, being Employer.
Outline of Principle
I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[2]
[2] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[3] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[4]
[3] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[4] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In the circumstances of the present matter, it is also important to record his Honour’s comments at [83]:
… the rule may not impede hearing an application for a small alteration, which may only require a short, narrow inquiry, but may properly prevent a hearing in respect of more far-reaching changes.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[5] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[5] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80], and [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
…
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[6]
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[6] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[7] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[7] Poisat & Poisat (2014) FLC 93-597.
More recently still, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[8] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[8] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
Most recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.[9] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[9] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86] (internal citations omitted; emphasis added):
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, Murphy J continued, at [110] – [116] (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
Consideration and Disposition
In the light of the authorities mentioned, and having regard to the submissions of the parties, in my view the current contest may be resolved in the following way.
First, because both parties seek it, by consent (so to speak) the Court will make an Order for [X] to spend time with her Father in accordance with her wishes. This is clearly a “small alteration” as contemplated by Warnick J in SPS v PLS.This parenting Order is to be notified to the Child Support Agency by both parents.
Moreover, because of the substantive agreement regarding [X], albeit simply by seeking identical Orders, it is illogical that the rule in Rice & Asplund should apply. Either it applies to both parties or to neither party. In the circumstances, the rule cannot apply only to one party while the other also seeks to vary the 2014 final Orders.
More particularly, especially in the light of the material contained in the s.11F Memorandum, and in accordance with the authorities to which I have referred, in my view it cannot be in the children’s best interests for the litigation between their parents to continue. Accordingly, the only Order that can properly be made in accordance with the principles outlined earlier in these reasons relates to the consensual position regarding [X]. Otherwise the further Orders sought by each parent should be dismissed. There will be no Order as to costs.
Secondly, in the s.11F Memorandum from Ms G, it is clear that (a) the children are well aware of the dispute between their parents, including down to issues of financial detail (which almost certainly must have come from the Mother), and (b) the regular return to the Court is also having an adverse impact on the children who are likewise cognisant of the litigation. Again, because they are not currently spending any time with the Father, it is more likely than not that this knowledge of further litigation was communicated to the children by the Mother. Accordingly, for an ultra degree of caution (even if it be the case that the children are already plainly apprised of all relevant detail regarding the financial dispute between their parents) there will be an Order prohibiting the parents from discussing any aspect of these proceedings – current or past – with the children. Any further indication that there has been a breach of this Order will be treated as severely as circumstances warrant.
Thirdly, as the Full Court made plain in Stewart & Stewart at [54] (as the same Court did in Carriel v Lendrum, noted earlier in these reasons), (a) no exhaustive discussion of s.60CC of the Family Law Act 1975 is going to shed very much or any light on what one or either party can or cannot afford, and (b) no consideration of any expert report is going to assist much regarding the same issue.[10]
[10] Stewart & Stewart [2017] FamCAFC 67.
Fourthly, on the limited evidence before the Court, the Father’s claims to being unable to afford the children’s school fees is somewhat problematic on a number of fronts. For example, he seeks to have his school fee payments tied to the amount of time he spends with the children. However, if the children were effectively in his full-time care, or spending very large amounts of time with him as sought by him in his Application, he does not say that he would not then be able to afford their school fees or a significant proportion of them. Either he cannot afford the children’s school fees in all circumstances, or he can afford them. This is especially so if, as he proposes in his Application, he is also able to take the children on overseas holidays.
Fifthly, I accept the Mother’s general argument that when the final Orders were entered into in July 2014, both parties must be taken to have some basic understanding that school fees increase in the higher years of school. Presumably each of them, with this most basic understanding, must be taken to have comprehended this daily and utterly practical reality. Such a view accords with Murphy J’s comments, noted above, in Walter & Walter.
Sixthly, although repetitive, I note again the danger to the Mother in embroiling the children in this ongoing dispute and sharing with them comments (however oblique or detailed they may be) and information regarding financial matters between the parents. At any final hearing, if such matters were more formally established, it may be that more specific Orders might be made as between the parents regarding the financial apportionment of certain costs regarding the education of the children, as well as costs of any proceedings.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 31 May 2019
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