Henry and Washburn
[2010] FMCAfam 165
•3 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENRY & WASHBURN | [2010] FMCAfam 165 |
| FAMILY LAW – Parenting – children aged nine and five – children living with mother until late 2008 and then moving to live with the father during a period when the mother’s mental health was unstable – children spending supervised time only with the mother during 2009 – mother’s mental health currently stable – mother proposing that the children return to her care – father proposing that the children remain living with him – whether the father is capable of providing for the children’s basic day to day needs – whether the mother’s mental health will remain stable – assessment of risk of the children being exposed to family violence between the mother and her current partner – where the older child has special needs and the younger child is not the biological child of the father – whether there should be a different regime for each child – mother proposing as an alternative that there be a ‘shared care’ arrangement for the older child but that the younger child live primarily with her – whether one parent should have sole parental responsibility for the children. |
| Family Law Act 1975, ss.60CC, 61C, 61DA |
| Applicant: | MR HENRY |
| Respondent: | MS WASHBURN |
| File Number: | NCC 3017 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 19 & 20 October 2009 & 15 & 16 February 2010 |
| Date of Last Submission: | 16 February 2010 |
| Delivered at: | Darwin |
| Delivered on: | 3 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Kristina Wooi |
| Counsel for the Respondent: | Mr Wilkinson |
| Solicitors for the Respondent: | Winder Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Sundstrom |
| Solicitors for the Independent Children’s Lawyer: | Adams & Associates |
ORDERS
That the children [X] born [in] 2000 and [Y] born [in] 2004 live with the father.
That the father have sole parental responsibility for the children.
That the children spend time with the mother as agreed between the parties and failing agreement as follows:
(i)every second weekend during school terms from 5.00pm on Friday (or 5.00pm on Thursday if Friday is a public holiday) to 5.00pm on Sunday (or 5.00pm on Monday if Monday is a public holiday) commencing on the first weekend after each new school term commences;
(ii)during the term 1, 2 and 3 school holidays for one half of each such holiday period being the first half in odd numbered years and the second half in even numbered years and alternating in this fashion thereafter;
(iii)during the term 4 school holidays from 5.00pm on the last day of the school term until 5.00pm on the middle day of the holidays in even numbered years and from 5.00pm on the middle day of the holidays until 5.00pm on the day before school commences in odd numbered years.
That the children spend time with the mother from 5.00pm on Christmas Eve until 2.00pm on Christmas Day in odd numbered years and from 2.00pm on Christmas Day until 2.00pm on Boxing Day in even numbered years and with the father from 2.00pm on Christmas Day until 2.00pm on Boxing Day in odd numbered years and from 5.00pm on Christmas Eve until 2.00pm on Christmas Day in even numbered years.
That if the children are not with the mother on Mother’s Day then the children spend time with the mother from 5.00pm on the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day.
That if Father’s Day falls on a weekend when the children are with the mother the children shall be returned to the father at 5.00pm on Saturday rather than 5.00pm on Sunday.
That each party shall advise the other of their residential address and landline (if available) and mobile telephone number and advise the other of any change to the same as soon as practicable and in any case within 48 hours of such change occurring.
That the father and mother may each obtain from the children’s school copies of school newsletters, school reports, order forms for school photographs and any other information usually provided to parents and are each entitled to attend events at the school normally attended by parents, including parent teacher interviews, school assemblies and sports days, notwithstanding that the children are not in their care pursuant to these orders on that day.
That each of the parties :
(a)(i) must notify the other as soon as practicable of any serious medical condition or injury suffered by the children or either of them and provide all information to the other party in relation to the medical treatment, the required dosage of any medication and the frequency of same;
(ii)shall have the right to discuss matters concerning the children’s health direct with the children’s medical practitioner, hospital or other health care professional and be at liberty to receive information directly from the medical practitioner, hospital or other health care professional concerning the children’s health or medical treatment and further, that the mother and father be at liberty to contact those persons directly and those persons are hereby authorised to supply the information to the father or mother;
(b)a “serious medical condition” for the purposes of this order shall include hospitalisation, the attendance of or transportation by ambulance and/or referral to a medical specialist.
That neither party shall denigrate the other party to or in the presence or hearing of the children.
That unless otherwise agreed between the parties the father or the father’s nominee shall deliver the children to the mother at the commencement of the mother’s time with the children and collect the children from the mother at the conclusion of the mother’s time with the children.
IT IS NOTED that publication of this judgment under the pseudonym Henry & Washburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3017 of 2008
| MR HENRY |
Applicant
And
| MS WASHBURN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Henry and Ms Washburn (whom I shall call ‘the father’ and ‘the mother’ in these reasons) cannot agree on future parenting arrangements for [X], 9 and [Y], 5, the children who were born during their relationship.
Until late 2008 the children lived with the mother, but in September 2008 and December 2008 respectively, during a period when the mother’s mental health was unstable, they came into the father’s care. Since then they have lived with the father and spent supervised time with the mother.
The father commenced court proceedings concerning the children in November 2008. The mother informed the court that she had always been uncertain about [Y]’s paternity and a paternity test was carried out which revealed that [Y] was not the father’s biological child. The identity of [Y]’s biological father has not been positively established.
At the final hearing the father sought orders that [X] and [Y] live with him and spend time with the mother on alternate weekends and during school holidays
The father accepted that the mother’s mental health was currently stable, and was happy for the children to spend unsupervised time with the mother while this continued.
The father sought an order for sole parental responsibility.
The father said that he was the parent who could provide good consistent care for the children into the future. It was his case that while the mother’s mental health was currently stable, she could easily suffer a relapse, there were strong indications that she continued to use illicit drugs, and her relationship with Mr H should concern the court.
At the final hearing the mother sought orders that [X] and [Y] live with her and spend time with the father on alternate weekends and during school holidays. The mother also suggested to the Family Report Writer that “a shared care arrangement for [X] would be appropriate, but that for [Y] time with should be reduced to include alternate weekends and half school holidays as he was not the father’s biological child.”
The mother sought an order that the parents have equal shared parental responsibility for [X] but that she have sole parental responsibility for [Y].
The mother struggled to accept that the children should continue to live with the father now that her mental health was stable, given that they had always lived with her in the past. She particularly struggled to accept that [Y] should remain with the father when he was not the father’s biological child.
The mother did not see why her past mental health difficulties were a barrier to her resuming care of the children. She was unwilling to contemplate the possibility that she might suffer a relapse but said that she was now adept at recognising the signs of declining mental health and could be relied on seek help and have her medication adjusted at an early stage if required. She denied continuing use of illicit drugs and said that the violent incident between herself and Mr H was now long in the past and would not be repeated.
The mother disputed that the father was able to provide good care for the children, and said that the evidence clearly demonstrated that he was unable to properly provide for the children’s health and hygiene needs. She also maintained that the father continued to use cannabis.
The Evidence
The father relied on his affidavit filed on 9 October 2009 and the affidavit of his partner Ms C filed on 9 October 2009. The father gave some updating oral evidence on 15 February 2010. The orders sought by the father were contained in the Minute of Orders Sought handed up by his counsel at the commencement of the hearing.
The mother relied on her response filed on 16 April 2009, her affidavits filed on 16 April 2009, 6 July 2009, 12 October 2009 and 15 February 2010, and the affidavits of her mother Ms W filed on 6 July 2009, her brother Mr W filed on 16 October 2009 and her partner Mr H filed on 16 October 2009.
A Family Report was prepared by Ms Jenny Richards. Ms Richards has a Bachelor of Social Work and a Master of Health and Science (Alcohol and Drug Specialisation). Ms Richards has been employed as a Family Consultant since April 2009. Between September 2003 and April 2009 she was a senior clinician and peri-natal health worker and in that position had experience with mothers with mental health issues who ceased taking medication prior to and after the birth of their children. Between January 2003 and September 2003 Ms Richards worked as an alcohol and other drugs social worker.
Ms Richards prepared a thorough family report. She has expertise in areas which well suited her to prepare this particular family report and this lends weight to her opinions and recommendations.
All of the witnesses were cross-examined.
During cross-examination the father was slow and ponderous when answering questions. His presentation raised concerns in my mind about his capacity to take prompt and effective action if issues about the children were brought to his attention by their school or by [X]’s paediatrician or psychologist.
The mother always had a ready answer to the questions she was asked in cross-examination but her basic stance was to deny everything and admit nothing, unless forced to reconsider when documentary evidence was drawn to her attention.
The mother’s evidence on the topic of her two positive drug test results in July and August 2009 was particularly unconvincing.
The mother said that she had tested positive for cannabis in July 2009 because she had passively inhaled smoke while in a bedroom with twelve other people one of whom was smoking cannabis.
The mother could offer no credible explanation for her positive (and high) reading in August 2009. She maintained that she had not used cannabis since 2004, which was at odds among other things with a test result from 2006 contained in the hospital records. It is also of considerable concern that the [H] Area Health Service records indicate that the samples provided by the mother on 23 June 2009 and 13 July 2009 raised a suspicion of “contamination or substitution.”
Background
The father and mother met in 1998 or 1999 when the father was about 25 and the mother 17 and they formed a relationship soon after. Two children were born during the relationship: [X] in December 2000, and [Y] in August 2004.
While there is no doubt that parties lived together in the same residence for some years, I cannot be certain about when they last lived together or even about when the relationship between them ended. What I can say with confidence is that whenever the parties were cohabiting, the father worked and the mother was the children’s primary caregiver and whenever the parties were not cohabiting the children lived with the mother and spent time with the father on an ad hoc basis.
During their relationship both parties used marijuana and for at least a period of three months, amphetamines. The extent if any to which each of them might be continuing to use illicit drugs was an issue at the hearing.
The mother suffered post-natal depression after the birth of [X] in 2000. Whether she suffered any mental health problems between then and 2006 is something about which I can make no findings, but in mid-2006, approximately eighteen months after [Y] was born, she began experiencing delusions and on 19 July 2006 her parents took her to [J] Hospital, where she was admitted.
The hospital records state that the mother presented with paranoid ideation. She was convinced that she was being stalked and was being filmed by hidden cameras. The mother was recorded as having a “4-6 year history of polysubstance abuse and THC dependence” and the provisional diagnosis was that the mother was suffering from drug-induced psychosis. The mother was placed on anti-psychotic medication.
The mother was in hospital from 19 July 2006 until 2 August 2006 and as far as I can gather members of the mother’s family cared for [X] and [Y] while the mother was in hospital.
The mother resumed the care of the children when she was released. She had out-patient appointments and in the notes of an appointment on 26 September 2006 is described as “still psychotic”. On 16 October 2006 the notes record that the mother was unsure about whether she was still being followed.
The mother had follow up visits from the Community Health Team after her release from hospital and continued to attend an outreach centre until January 2007.
By some time in 2006 or 2007 the mother’s relationship with the father was definitely over and the mother had commenced a relationship with her current partner Mr H.
In May 2007 a bizarre incident occurred in which the father entered the mother’s unit in the early hours of the morning armed with a hammer. He left after talking to the mother and the mother did not call the police. Several days later the father was again at the mother’s unit complex, this time armed with a rubber mallet. The mother let the father into her unit and they had a conversation about Mr H but this time the mother contacted the police after the father left.
The police went to the father’s home and spoke to him. The police took him to [J] Hospital for an assessment of his mental health but he was released shortly thereafter. They also took out an Apprehended Violence Order (AVO) against the father for the protection of the mother.
During 2007 the mother and father attended family dispute resolution to discuss parenting arrangements for the children. No agreement was reached. The children continued to live with the mother and spend time with the father on an ad hoc basis.
In March 2008 the mother’s daughter [Z] was born. Mr H is [Z]’s father.
On 18 May 2008 a serious incident of family violence perpetrated by Mr H occurred at the mother’s home.
At about 2.00am in the morning the mother let Mr H into her unit after hearing knocking on the front door. [X], [Y] and [Z] were all in the unit, and [Y] was asleep on the lounge. Mr H became abusive and called the mother a whore. He slapped the mother on the back of the head and then sat at the kitchen table with a bottle of beer. He continued to abuse the mother and refused to leave despite her repeated requests. When the mother took steps to call the police, Mr H pulled the phone line out of the wall. The mother then called the police on her mobile.
While the mother was on the phone Mr H threw the bottle of beer at the ceiling. It did not break but landed near [Y], spraying him with beer. Mr H grabbed the bottle and left the unit. However he then used the bottle to smash the kitchen window from outside
Police attended but Mr H had gone by then and the mother was not particularly co-operative with the police.
At 4.30am Mr H returned to the unit and demanded to be let in. When the mother refused to let him in he crawled in through the broken kitchen window. He was relentlessly abusive toward the mother and shoved her. The mother again called the police.
At about 4.50am the police arrived and removed Mr H. The police considered him too intoxicated and aggressive to be interviewed.
The police obtained an Apprehended Violence Order (AVO) against
Mr H and charged him with assault and malicious damage.
The next morning Mr H returned to the unit (despite the AVO prohibiting him from being within 100 metres of it) and repeatedly demanded to be let in to collect his clothes and personal items. Mr H was arrested and charged with breaching the AVO. While he was being searched a small quantity of marijuana was discovered on him.
The mother later resumed her relationship with Mr H not long after this incident and the AVO was revoked.
On 26 May 2008 the mother contacted [N] Community Mental Health Service and informed them that an incident had occurred involving
Mr H and that she was seeking support and assistance. The mother was reluctant in cross-examination to admit that she contacted the service at this time but a letter attached to one of her own affidavits confirmed that she had been “an active and engaged client of [N] Community Mental Health Service since 26 May 2008.”[1] On 5 June 2008 the mother contacted the Service requesting to “restart treatment” and she informed the Service that she had been non-compliant with her medication since February 2007 because it interfered with her functioning.
[1] Annexure D mother’s affidavit filed 12 October 2008
In September 2008 [X] went to live with the father, and this occurred following an incident at [C] Hospital.
The father had taken [X] to the hospital after picking him up from school at the school’s request, the school having first unsuccessfully tried to contact the mother. When the mother arrived at the hospital [X] was being examined. The mother demanded that [X] be permitted to leave with her but the hospital refused to release [X] and an unpleasant scene occurred. The mother suggested to the hospital that [X] was malingering.
The hospital was concerned about the mother’s psychiatric state and made a notification to the Department of Community Services. In the end the mother left the hospital without [X], and [X] has lived with the father ever since. It was the mother’s evidence that she left without [X] because [X] told her that he wanted to live with the father.
On 4 November 2008 the mother rang [N] Community Mental Health Service asking to see a doctor. On 9 November 2008 she was transported to [J] Hospital by ambulance and was admitted.
On 26 November 2008, the father applied to the court for an order that both [X] and [Y] live with him.
The mother was released from hospital on 1 December 2008.
On 16 December 2008 interim orders were made that both [X] and [Y] live with the father and spend time with the mother for four hours every Saturday afternoon, supervised by a member of her family.
On 5 February 2009 the mother was again admitted to [J] Hospital. She was not released until 26 February 2009, but she was given day leave during this admission and it appears that save perhaps for one Saturday she continued to spend time with [X] and [Y] in accordance with the court orders while she was hospitalised.
On 16 April 2009 the mother filed a response to the father’s application in which she sought among other things an order for paternity testing for [Y]. This testing was carried out and revealed that [Y] was not the father’s biological child.
The mother believes that [Y]’s father is one Mr S but her efforts to interest him in these proceedings have been unsuccessful.
In May 2009 the father, [X] and [Y] moved in with Ms C and her three children. The father had known Ms C for many years.
On 8 July 2009 an order was made by consent extending the mother’s time with children and since then she has spent time with the children from 9.00am to 5.00pm each Saturday and from 9.00am to 5.00pm each Tuesday during school holidays, supervised by a member of her family.
The current circumstances of the parties
When the hearing commenced in October 2009 the father, [X] and [Y] were living with Ms C and her three children aged 13, 9 and 4, in a three bedroom unit in [B]. The unit was overcrowded. However on Christmas Eve 2009 family was relocated to a four bedroom house in [W], which has allowed a better allocation of bedrooms and provides more space for the large blended family.
The father works on a casual basis as a [occupation omitted]. Ms C is engaged in home duties.
[X] attended [T] School during 2009 but as a result of the move to [W] [X] now attends [C] School. [Y] commenced kindergarten at [C] in 2010.
The mother lives in a three bedroom unit in [B] with her daughter [Z], who is almost 2. She continues in a relationship with Mr H and she and Mr H are expecting a second child in early March 2010.
The mother and Mr H were adamant that they did not live together and that Mr H lived with his parents.
I cannot find on the state of the evidence that the mother and Mr H are maintaining a charade about their living arrangements in order to maximise their individual Centrelink benefits, and to a large extent whether Mr H and the mother are living together in a sense that should trouble Centrelink is not relevant in these proceedings. What is relevant is that Mr H and the mother clearly have a close and continuing relationship which involves Mr H spending nights at the mother’s unit, sharing in the care of [Z] and socialising and going shopping with the mother. Mr H will be a significant presence in the lives of [X] and [Y] if they live with the mother.
[X] and [Y]’s best interests
Any orders I make about [X] and [Y] must be orders which treat their best interests as the paramount consideration.
Sub-sections.60CC(2) & (3) of the Family Law Act set out the considerations to which I must have regard in order to determine [X] & [Y]’s best interests.
The primary considerations in s.60CC(2) are as follows:
a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
[X] and [Y] have a meaningful relationship at present with both the father and the mother.
If the children continue to live with the father I am satisfied that they will continue to have a meaningful relationship not only with the father but with the mother.
The father displayed no animosity toward the mother during the hearing and there was no evidence that he had in the past done or was likely in the future to do anything which would undermine the children’s relationship with her. Notwithstanding the evidence about the two incidents in the last Christmas holidays I am satisfied that he will do his best to comply with court orders about the children spending time with the mother.
If the children return to live with the mother however, I consider that [Y]’s relationship with the father might be at risk. The mother struggles to accept that the father should have a significant role in [Y]’s life now that it has been revealed that [Y] is not his biological child. In my view the mother could not be counted on to promote [Y]’s relationship with the father if [Y] lived with her, and might even, by repeated emphasis to [Y] about his biological paternity, undermine it..
[Y]’s relationship with the father is very important, regardless of whether he is the father’s biological child, and I place weight on the following evidence of Ms Richards:
“Whilst the paternity of [Y] is no longer in dispute it is imperative to remember that whilst the father is not the biological father he is nonetheless the child’s psychological father and that [X] remains his sibling regardless of paternity.”[2]
[2] Family Report paragraph 59
Technically speaking of course the issue of [Y] maintaining a meaningful relationship with the father is not a relevant primary consideration but it is still an important consideration which if I did not take it into account here I would have to take into account later in this judgment.
As to the second primary consideration, I must consider the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
It was the father’s case that during his relationship with the mother he had observed her verbally and physically abusing the children.
The mother vehemently denied that the events described by the father had occurred and during the report interviews Ms Richards observed an easy relationship between the children and the mother, not suggestive of them being fearful of her.
While this might tend to a conclusion that there is no reason to be concerned about the mother’s treatment of the children, she had only been having only supervised time with them for more than eight months prior to the report interviews taking place.
The evidence in the hospital notes from [C] Hospital about the mother’s behaviour in the emergency department in September 2008 after [X] was taken there with suspected respiratory problems suggests that in certain circumstances the mother is capable of losing control and being verbally abusive.
However the father’s allegations about the mother’s past conduct were for the most part very general, the allegations were not explored with the mother during cross-examination and no medical evidence was presented in respect of the alleged injury to [X]’s ear, and it is impossible for me to be satisfied on the balance of probabilities that the mother abused the children in the past as alleged or at all.
As to the risk of the mother abusing the children in the future, I place weight on the fact that the father is not seeking an order that the mother’s time with the children be supervised absent her mental health again deteriorating.
It was the father’s case that there was a risk of the children being neglected by the mother if her mental health did again deteriorate. I consider it appropriate to deal with this issue in the context of considering the mother’s capacity to provide for the needs of the children.
The mother raised concerns about the father’s care of [X] and [Y] which if true could establish that the children have been neglected while in the father’s care. I consider it appropriate to deal with this issue in the context of considering the father’s capacity to provide for the needs of the children.
I must finally consider whether there is any risk of the children being exposed to family violence while in the mother’s care. There was a serious incident of family violence between the mother and Mr H in May 2008.
There was no evidence that Mr H or the mother received any counselling or treatment after this incident. It was the mother’s case however that nothing like it had occurred since and that there was no risk of anything like it occurring in the future.
The mother was not a witness of particular credit, and she hid the extent of what happened in May 2008 from her brother Mr W, who professed to be very close to her. These things cause me to be uneasy about whether or not the mother may be hiding difficulties in her relationship with Mr H. However there was no evidence (for example COPS records) of any other incident of violence having occurred between the mother and Mr H since May 2008 and I cannot conclude that there is a high risk that if the children live with or spend time with the mother they might be exposed to family violence.
As to the additional considerations, I must first consider any views expressed by the children and the weight which should attach to those views.
[X] informed Ms Richards that he wanted “his mother and father to reconcile so that they can all live together.” Ms Richards also reported [X] as saying that:
“….he misses the mother ‘a little bit’ and misses [Z] a lot, but feels that ‘nine to five every Saturday’ is enough time to spend with the mother.”[3]
[3] Family Report paragraphs 37, 42
Ms Richards also reported that:
“[Y]’s expressed views are that he does not know why he does not live with the mother and that he is happy to live with the father but would prefer to live with the mother ‘because dad doesn’t have a little baby...[Y] also referred to not having his own toys at his father’s house.”[4]
[4] Family Report paragraph 48
[X]’s views about parenting arrangements are somewhat conflicted, and [Y] had only just turned 5 at the time of the interviews. The evidence about the children’s views elicited by Ms Richards does not assist me to resolve this matter one way or another.
I must consider the nature of the relationship of the children with:
i)each of the children’s parents; and
ii)other persons (including grandparents or other relatives of the children) with whom he or she has been living.
Ms Richards observed the children with the father and the mother and it was her opinion that the children had a good relationship with each of them.
It was accepted by both parties that the children had a loving relationship with their younger sister [Z].
Ms Richards did not have an opportunity to observe the children with either the father’s partner or the mother’s partner but said that the children “reported that they enjoy the company of the mother’s partner and also the father’s partner and her three children.”[5]
[5] Family Report paragraph 10
It is convenient to note here that the children also have a good relationship with their maternal grandmother. It emerged during evidence that on a few occasions over the last year or so the children have expressed a wish to see their maternal grandmother and the father and maternal grandmother between them have arranged for this to occur.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The father has by and large complied with court orders for the children to spend time with the mother and he did not display any antipathy to the mother during the hearing. I consider that the father has a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between the mother and [X] and [Y]. I am not persuaded that the two instances in December 2008 and January 2009 when the children missed time with their mother is evidence that the father lacks this willingness and ability.
The mother facilitated the father spending some time with the children prior to court proceedings commencing in 2008, and to that extent the mother demonstrated a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father.
The mother accepts that [X] must have a relationship with the father in the future, and although I would not rate her willingness and ability to facilitate that relationship as high, given her current antipathy to the father, I am satisfied that she would support that relationship.
Technically the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the father and [Y] is not relevant here, as the father is not [Y]’s biological parent, but it is relevant to a determination of [Y]’s best interests and it is as convenient to consider it here as anywhere.
The mother’s evidence both in her affidavits and given orally suggests that she does not, now that the situation about [Y]’s parentage has emerged, truly believe that [Y] should have the same relationship with the father as before.[6] In my view the mother lacks the willingness and ability to facilitate and encourage a close and continuing relationship between the father and [Y].
[6] Mother’s affidavit filed 12 October 2009 paragraph 34 and 36.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child has been living.
The orders proposed by the mother (that the children live with her) would result in a significant change for the children in comparison to the arrangements which have been in place for the last fourteen months in the case of [Y] and sixteen months in the case of [X].
It was the mother’s case that the change would be a beneficial one for the children. It would restore the status quo which existed prior to September 2008 and it would result in them receiving better day to care. The children would be reunited with their sister [Z], whom they both adored, and a return to the mother’s care would be in accordance with [Y]’s wishes.
While the children might adapt to a return to their mother’s care, it could be a detrimental change for them for a number of reasons.
It would be a detrimental change for them in the short term if, despite the mother’s optimism, she found that she could not cope with the full time care of [X] and [Y] as well as [Z] and the new baby. It would be a detrimental change for them in the longer term if the mother’s mental health deteriorated and the children were exposed to indifferent care for a period of time or even a reversal of their living arrangements because the mother was again hospitalised.
It would be a particularly detrimental change for [Y] if it resulted in his relationship with the father being undermined and a wedge being driven between himself and [X]
I must also consider the likely effect on the children of an order that [X] live in a shared care arrangement and [Y] live with the mother, as this was a possibility the mother raised with Ms Richards.
An advantage of this proposal is that it might relieve some of the stresses on the mother’s household and create a situation more likely to work than a return to her full time care of both [X] and [Y]. [X] is not the easiest child to look after and it needs to be born in mind that the mother voluntarily relinquished [X] to the father in September 2008, saying that this was what [X] wanted. During these proceedings the mother mentioned difficulties she had had during recent visits with [X] hitting [Y].
There are many reasons however why this proposal would be unlikely to benefit the children. It is impractical, because one parent would have great difficulty getting [X] to school during their time with him. The parents also lack any capacity to communicate and co-operate. However the greatest drawback to this proposal is that it would mean splitting two siblings who until now have lived together their whole lives. As Ms Richards aptly observed:
“The impact of the father’s proposal on the children is that the children will remain together as siblings and that [Y] will retain a relationship with the father who is the only father he has known since birth…..
The impact of the mother’s proposal on the children will mean that if a shared care arrangement were to proceed [for [X]] [Y] would undoubtedly feel ostracised from the father’s household and from his relationship with [X] and the father.”[7]
[7] Family Report paragraph 61, 62
The father told Ms Richards that he was not opposed to a shared care arrangement (presumably for both children although this was not made clear in the Family Report) if it was in the best interests of the children, but the mother and father are simply not suitable candidates for a shared care arrangement.
They have no ability to communicate productively and resolve problems and even though they live only ten or eleven kilometres apart, the fact that most of the relevant adults lack driver’s licences and motor vehicles means that there would be a real difficulty in getting children to school at least one week out of two if they lived in a shared care arrangement.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
Although the parents live only about ten or eleven kilometres apart, there will be a practical difficulty in the children spending time with the party with whom they do not live. The father has a licence and a motor vehicle, but the mother and Mr H do not have driver’s licenses or a motor vehicle, and the father’s partner only has a learners permit.
The father has recently returned to regular work and this has already resulted in the children missing time with the mother on one occasion, because the father was unable to drop them off and also attend work and the parties were unable to agree on alternative arrangement.
The maternal grandmother has a licence and is willing to help out but her car is unreliable.
There are buses available, but it was generally agreed that because of the bus routes it would be necessary for anyone using public transport to travel between the two homes to catch two or three buses. This will create a particular difficulty for the mother if she is required to do any picking up and dropping off, unless of course Mr H is able to mind [Z] and the new baby while the mother attends to either picking up or dropping off [X] and [Y].
These difficulties cannot be alleviated by any orders I make about where the children live, and they need not affect the right of the children to spend time with the parent with whom they do not live provided that the parents are willing to be flexible.
I must consider the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
The issues which need to be considered in respect of the mother are:
(1)whether the mother would be able to cope with looking after [X] and [Y] as well as [Z] and her new baby if [X] and [Y] returned to her full time care;
(2)the impact on the children of a deterioration in the mother’s mental health and the likelihood of this occurring;
(3)whether the mother continues to use illicit drugs.
The mother was confident that she would be able to cope with caring on a full time basis for a toddler, a new born, a five year old and a nine year old with special needs but Ms Richards expressed concern that the mother might be underestimating the difficulties she would face.
I share this concern, particularly as the mother has found [X] challenging in the past, and particularly in view of the fact that she voluntarily relinquished him to the father in September 2008.
The mother was reluctant to concede that her mental health might deteriorate again but she as been hospitalised three times in the last three years. She became stable after her medication was adjusted in early 2009, but it is impossible to be confident that the mother will remain compliant in taking her medication. She has not remained compliant in the past.
The mother has in any event recently ceased taking medication because she hopes to breastfeed her new baby. Ms Richards’s evidence was that based on her experience this would be a time of particular risk for the mother.
Another reason that I am less than confident that all the mother’s problems are behind her is that one diagnosis offered in respect of the mother was that she was suffering from drug induced psychosis and it is impossible to be satisfied that she has ceased using drugs.
The mother denied recent use of drugs but she tested positive to cannabis twice in 2009. The mother said that the first positive result was because she was in a room where someone else was smoking cannabis and she passively inhaled it. She was unable to offer any explanation for the positive result in August 2009. Of particular concern was the fact that the [H] Health records raised the possibility that two samples taken from the mother between the positive result in June 2009 and the positive result in August 2009 may have been contaminated or diluted.
I am not convinced that the mother has ceased using illicit drugs.
The mother was reluctant to admit that her parenting capacity was affected during periods when her mental health was unstable. She said that prior to her admission to [J] in November 2008 she was still able to “feed change and take care of [Z].” However in my view the mother’s judgment about her parenting capacity during the periods of deteriorating mental health is impaired.
The mother admitted that in 2006 she was taken to hospital because “people around me believed I was having paranoid delusions and that it would be best for me to attend [hospital]” but admitted that at the time she could not see that she had paranoid delusions.
The mother’s behaviour in September 2008, three months or so after the mother contacted [N] Community Health Service seeking support and two months before she was admitted to [J] in November 2008, was so concerning that the hospital notes at the time queried whether the mother had a psychiatric problem and the hospital notified DOCS.
The mother admitted that prior to her February 2009 admission to [J] she was experiencing problems at home prior to her admission in February 2009, including having difficulty deciding what clothes to wear, having auditory hallucinations, pacing around the unit and being hyper vigilant and extra anxious.
I consider that the mother’s parenting capacity has been affected in the past perhaps for quite lengthy periods when her mental health has been unstable, and if her mental health becomes unstable in the future then her parenting capacity will again be affected.
In summary I have serious reservations about the mother’s capacity to provide for the needs of [X] and [Y] on a full time basis, whether her mental health is stable or not.
The issues which need to be considered in respect of the father are:
i)whether he is able to properly provide for the children’s basic day to day needs; and
ii)whether he continues to use illicit drugs.
It is convenient to consider the father’s capacity to provide for both [X] and [Y]’s needs in the same section of the judgment.
The mother said that there was ample evidence that the father had neglected the children’s health and hygiene during 2009. She said that whenever they came to spend time with her they were dirty, had old shabby ill-fitting clothes and shoes and often had head lice.
There was some independent evidence that the father had struggled to keep [X] clean and properly dressed. Ms Richards spoke to [X]’s teacher, Ms W, and said as follows:
“Whilst Ms W reported that [X] attends school regularly and that he always brings his lunch to school with him. However, it is of concern that she reported that [X] comes to school smelling due to poor hygiene and that his school shirts are often filthy to the point where other school members regularly comment about the state of [X]’s hygiene and uniform. She feels that [X]’s personal hygiene has deteriorated since the father commenced living with his new partner….”[8]
[8] Family Report paragraph 45
During cross-examination the father was questioned at some length about his care of [X], and he admitted that he had experienced difficulty in ensuring that [X] put on clean clothes or kept warm clothes on in winter.
On the positive side, the father did take steps during 2009 to seek help for [X]. He took [X] to Kaleidoscope (although I accept that the process of [X] seeing someone at Kaleidoscope may have started when [X] was living with the mother) and arranged for him to see a paediatrician.
The father also brought [Y]’s immunisations up to date. The mother was critical of the father for neglecting dental appointments for the children, but it is impossible to be certain that the mother was any more pro-active about the children’s dental care.
Ms Richards spoke to [Y]’s pre-school teacher, Ms A. Ms A did not express any concerns about [Y]’s presentation at school. Ms Richards also commented that both children were clean and appropriately dressed on the day of the family report interviews.
Putting the matter in some perspective, the mother admitted that ensuring that [X] was appropriately dressed had presented a challenge for her as well in the past, and there was no evidence on which I can place weight that [Y]’s clothing or hygiene had been neglected by the father. The mother was critical of the father over the state of [Y]’s shoes in late 2009 but I am not satisfied that the evidence on this issue establishes neglect by the father.
I do have some reservations about the father’s capacity to provide for [X]’s needs. The fact that the father admitted that he had not read a recent school report (although his partner Ms C said that she had) and his slowness in answering questions during cross-examination caused me some concern. I am however satisfied that on the whole the father has the capacity to provide adequately for the children’s needs on a day to day basis, although if [X] does continue to live with him he will need to be more vigilant about [X]’s clothing and hygiene..
It was also the mother’s case that the father continued to use marijuana.
The father admitted that he had continued to use marijuana until June 2008 but said that he had ceased using it entirely at that time.
The father did not test positive for the presence of illicit drugs in any of the drug screening tests he underwent following the commencement of these proceedings. The mother’s evidence about the father’s alleged drug use in recent times did not go beyond bare assertion and I am unable on the state of the evidence to be satisfied that the father continues to use marijuana.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks is relevant.
Two issues need to be considered here. The first is [X]’s special needs, and the second is the fact that whatever their paternity, [X] and [Y] are siblings who have lived together all their lives.
The mother said that when [X] was about four and a half she was concerned about his behaviour and wondered whether he might be suffering from Asperger’s syndrome.
During 2009 the father took [X] to see a paediatrician. It was the father’s evidence that [X] was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD) and was prescribed Ritalin, and also referred to a psychologist. No medical evidence about [X] was produced during the hearing.
Ms Richards saw [X] in September 2009 for the preparation of the Family Report and said as follows:
“[[X]] presented as a worried, angry child and did not present as developmentally within normal parameters. His speech was often ‘baby-like’ and whilst his speech was clear his vocabulary appeared to be limited, leading to him having difficulty expressing himself.”[9]
[9] Family Report paragraph 36
[X]’s Year 3 teacher Ms W informed Ms Richards that [X] had “difficulty coping socially and academically. Ms W described [X] as ‘a loner’ who has ‘started to come out a bit more’ but who is largely ostracised by his peers.”[10]
[10] Family Report paragraph 44
[X]’s teacher expressed the view that she had not seen any indicators of ODD or ADHD and said that she had not seen any change in [X]’s behaviour since he commenced taking medication.
Given the absence of expert evidence I cannot be certain about [X]’s diagnosis or prognosis, but it is clear that he has special needs and it is also clear from the evidence given by both parents that caring for [X] can be challenging. Both parents admitted some difficulty in making sure [X] wore suitable clothing and the mother was concerned about [X]’s aggressive behaviour toward [Y].
The second relevant matter which needs to be considered under this heading is that while it now turns out that [X] and [Y] have different biological fathers, they are also siblings who have lived together for the whole of their lives, except for an insignificant period of about two months in late 2008.
Ms Richards expressed the opinion that:
“It is essential that the sibling relationship is supported and maintained, as the sibling relationship is unique in that it often transcends that of the parental relationship and the shared sibling experience not only creates memories, but also helps the siblings in finding ways to help manage their conflict.”[11]
[11] Family Report paragraph 58
The mother’s proposals for the children’s care have two potential ramifications for this relationship.
If both children lived primarily with the mother they would be together but if the mother did not support [Y] having a continuing relationship with the father in the same way as [X], and I consider that she would not, a subtle wedge might be driven between the children over time.
If [X] lived in a shared care arrangement and [Y] lived with the mother a wedge would also be driven between the siblings.
Ms Richards did not support [X] and [Y] being separated and I place weight on her opinion. She said as follows:
“It is recommended that the subject child [Y] has the same spending time with arrangements as the subject child [X] in order to provide the subject children with stability, predictability and consistency and promote the sibling relationship.”[12]
[12] Family Report paragraph 76
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
Each of the parents is keen to be involved in [X]’s life, and the mother is keen to be involved in [Y]’s life. To this extent each parent has shown a good attitude to the duties and responsibilities of parenthood.
It is convenient to mention here, despite technical issues, that the father did not display a good attitude to the duties and responsibilities of parenthood when he did not tell the mother about [Y]’s enrolment in [C] School, depriving her of the opportunity to attend his first day at school. However the evidence suggests that the mother and father have often acted independently of each other in the past in making decisions about matters such as school enrolment and attendance on doctors and paediatricians. It is regrettable that the mother missed [Y]’s first day at school but I suspect that this occurred more because of thoughtlessness on the father’s part than because of any conscious plan by the father to exclude her.
I must consider any family violence involving the children or a member of the children’s family.
The mother alleged that the father had “made threats of violence against [her] on various occasions the dates of which I do not recall”[13] but I can place no weight on this evidence which did not go beyond bare, and vague, assertion.
[13] Mother’s affidavit filed 16 April 2009 paragraph 31
The mother also alleged that the father threatened her with a hammer in May 2007. [14]
[14] Mother’s affidavit filed 16 April 2009 paragraph 28
The father did enter the mother’s unit in the early hours of the morning on 24 May 2007 armed with a hammer, but the father and mother talked and the father left. The mother did not call the police on that occasion. Three days later the father was again at the mother’s unit this time armed with a rubber mallet. Once again he and the mother talked and the father left but this time the mother rang the police for advice.
The police went to the father’s home and spoke to him. He told the police that he had gone to the unit armed for his personal protection against other people who might be there. The father admitted that his actions were not rational. The police took the father to [J] Hospital where he was assessed and released. The police obtained an AVO against the father on the mother’s behalf.
The father’s behaviour gives rise to concern, but there was no evidence that he threatened the mother and no evidence that the mother was fearful during these incidents. She did not call the police at all on the first occasion.
I am not satisfied that the father’s conduct on these occasions comes within the definition of family violence in the Family Law Act and I am not satisfied that he was violent to the mother on any other occasion.
The father alleged that during his relationship with the mother she kicked and punched him, sometimes leaving bruising on him, and would pinch poke and punch the children. He also alleged that on one occasion she hit [X] on the head resulting in [X] suffering a ruptured ear drum.
The evidence about the mother’s behaviour at the hospital in September 2008 certainly suggests that she is capable of aggressive outbursts. However the father’s allegations about the mother’s behaviour to him were very general, as were the allegations about her behaviour toward the children. There was no medical evidence to support a finding that [X] suffered a ruptured ear drum. I am not satisfied on the balance of probabilities that the mother committed specific acts of family violence.
Family violence undoubtedly occurred in May 2008 between the mother and Mr H. Although I have some concerns about the mother’s frankness there was no evidence that this conduct had been repeated and no basis on which I could do more than speculate about whether it was likely to be repeated in the future.
There are no family violence orders currently in place between the parents or between the mother and Mr H.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
An order that the children live with the father and spend time with the mother is the order least likely to lead to further proceedings but further proceedings cannot be ruled out no matter what order I make.
There are many difficulties surrounding these children, and any number of matters, including a dispute about the state of the mother’s mental health or a dispute about pickup and drop off if the father becomes entangled in work commitments and cannot find anyone to help him to do the changeovers, could result in further proceedings being instituted.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that the father and mother have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of [X] or family violence.
I am not satisfied that either parent has engaged in family violence or that either has abused [X] as abuse is defined in the Family Law Act and the presumption therefore applies. The presumption may however be rebutted by evidence that it would not be in [X]’s best interests for it to apply.
The presumption has no relevance in relation to [Y] in these proceedings, as the father is not [Y]’s parent for the purposes of s.61DA, and no other person has been identified as his biological father. The mother has parental responsibility for [Y] by force of the legislation, but it is open to me to alter that by court order if I consider that it is in [Y]’s best interests that I do so.
The father sought an order that he have sole parental responsibility for both children.
In her case outline the mother sought an order that the parties have equal shared parental responsibility for [X] and that she have sole parental responsibility for [Y].
During final submissions the mother’s counsel proposed as an alternative that no order be made about parental responsibility. If no order was made then each parent would, by force of s.61C of the Family Law Act, retain parental responsibility for [X] which they could exercise independently of each other, and the mother would effectively retain sole parental responsibility for [Y].
Ms Richards’ recommendation was that the parent with whom the children lived should have sole parental responsibility for them, because the parties had no capacity to communicate.
The evidence certainly supports a finding that the parties have no ability to communicate productively at present.
Evidence was given about two occasions during the Christmas School holidays where circumstances required that the parties to consider varying the orders concerning the children spending time with the mother. The parties were unable to reach any agreement. The father put some sensible proposals to the mother, but the mother refused to give his proposals a moment’s consideration.
I have no confidence that the ability of these parties to communicate is likely to improve in the future. While the father might make some attempts to communicate, the mother is hostile to the father and informed Ms Richards during the family report interviews in October 2009 that she “[chooses] not to communicate with [the father] because he is maliciously controlling.”[15] The mother’s hostility may well increase if an order is ultimately made that the children live with the father.
[15] Family Report paragraph 70
If parents have equal shared parental responsibility for children they are required to consult with each other and make a genuine effort to come to a joint decision about major long term issues in relation to the children. There is little prospect of these parents being able to consult with each other and make a genuine effort to reach an agreement.
It is a serious thing to remove from a parent the right to have a say about major long-term issues in relation to their children, particularly in circumstances where that parent is keenly interested in being a part of the children’s lives and will be seeing the children regularly.
If however a decision about a major long term issue needs to be made and the parties cannot even begin to consult with each other, then one party must have the right to decide. Otherwise, the children may either miss out completely on something occurring, or the parties will be forced to return to court so that a decision can be made.
I am not persuaded that the alternative solution of each party having parental responsibility for [X] which they could exercise separately would be in [X]’s best interests. It could result, for example, in one parent taking [X] to a psychologist one week and the other taking him to a different psychologist in the other week or in one parent refusing to give [X] the same medication as the other because they had obtained a different paediatrician’s opinion.
I am also not persuaded that it would be in [Y]’s best interests that the mother has sole parental responsibility for him, unless I make an order that [Y] lives with the mother. Even then I have some concerns about what would happen if the mother became ill and was hospitalised because she might then for a substantial period be unable to make good decisions for [Y]. However there is merit in Ms Richards recommendation that an order for sole parental responsibility should be made in favour of the parent with whom the children are to primarily live.
Conclusion
It was the mother’s case that it would be in the children’s best interests if they were returned to her care and the status quo prior to late 2008 was restored, and that this would particularly be in [Y]’s best interests, as he was not the father’s biological child.
It was submitted on the mother’s behalf that she was able to provide better day to day care for the children than was the father, and that her past mental health difficulties were just that and should not stand in the way of the children being returned to her now that she was stable. The mother was adamant that she would be able to cope with [X] and [Y] as well as [Z] and the new baby due in March 2010.
I accept that the children did live with the mother for a substantial period of their lives prior to late 2008, and I accept that the mother’s mental health is currently stable, but these are not sufficient reasons to remove the children from the father after fourteen or more months and return them to the mother.
Although some aspects of the father’s care of [X] need improvement, I am satisfied that he has provided reasonably satisfactory care for the children since late 2008 and will continue to do so. I have on the other hand considerable reservations about whether the mother would cope with parenting [X] and [Y] on a full time basis if they were returned to her care.
[X]’s care alone presents challenges, and the mother voluntarily relinquished him to the father in September 2008. If both children returned to live with the mother full time she would be faced with caring for a toddler, a five year old and a nine-year old with special needs together with a newborn.
Ms Richards expressed concern, which I share, about whether the mother would cope in this situation, and the difficulty is compounded by the fact that there is no certainty that the mother will remain well, and she would certainly not be able to cope if her mental health again deteriorated.
There is a considerable risk that the mother’s mental health might again deteriorate. She has had three admissions to [J] Hospital since 2006. The mother was non-compliant with her medication in 2007 and again in late 2008, preceding her second and third admissions. The medication prescribed for the mother in 2009 has stabilised her mental health but the mother has recently ceased taking her medication due to her wish to breastfeed her new baby. I place weight on Ms Richards’ opinion that this will be a danger period for the mother in terms of her mental health.
I am also not convinced that the mother has ceased using illicit drugs, which is a serious concern given the earlier diagnosis that the mother may be suffering from drug induced psychosis.
Another concern I have in respect of the mother’s proposal is that it is likely that [Y]’s relationship with the father would be undermined if [Y] lived primarily with the mother. Not only would this be a loss in itself for [Y], who does not know any other father, but it might also affect his important sibling relationship with [X].
I concur with the submissions of the Independent Children’s Lawyer that the best outcome for [X] and [Y] would be to have a secure living arrangement with their father. There is no certainty that the mother will cope if the children are returned to her full time care, and even if she does cope while she is well, there is a considerable risk that she will suffer further periods of mental ill health in the future. If this occurs it will be less disruptive for [X] and [Y] if their time with their mother has to be suspended as a result than if they have to change residences and schools as a result.
The mother suggested to Ms Richards that a shared care arrangement be considered for [X] but that [Y] live primarily with her. The parents are not good candidates for a shared care (equal time) arrangement in any event but Ms Richards considered that such an arrangement would be particularly detrimental for [Y], who would “undoubtedly feel ostracised from the father’s household and from his relationship with the father and [X].”
I place weight on this opinion, and I share the view that an arrangement whereby the siblings were split would have no demonstrable benefits for either child and would be highly likely to have a negative effect on [Y].
I therefore intend to make orders that [X] and [Y] live primarily with the father, and spend time with the mother. I also intend to order that the father have sole parental responsibility for the children.
No orders I make can solve all the problems these children face.
Ms Richards made recommendations about the mother ensuring that she continued her treatment with a psychiatrist, about the father and mother both contacting Brighter Futures for support, about the father being more vigilant about [X]’s hygiene and clothing and about both parents being sensitive in handling the issue of [Y]’s paternity.
I hope that each parent will pay very careful attention to these recommendations.
The current interim orders provide that for the father to drop the children off and pick up the children for the purposes of them spending time with their mother. When this order was made the parties were living almost next door to each other in [B]. They now live about eleven kilometres apart.
The father has a driver’s licence and a motor vehicle, while the mother does not have either. The mother’s partner does not have a licence or a motor vehicle and the father’s partner only has a learner’s permit.
Ideally the mother should be assisting in the picking up and dropping off, but there is no direct bus route between the parties’ homes and it would be unduly onerous on the mother to require her to pick up or drop off the children by bus.
The father has now returned to casual employment and I am concerned about making an order that he do all the picking up and dropping off. I can as proposed by the father’s counsel make an order that the father be permitted to delegate this task, but given the circumstances of these parties and their extended families, problems could still easily arise.
There is no ready solution to this problem however and regrettably adopting the proposal by the father’s counsel is the best that I can do. If difficulties arise repeatedly with the children being dropped off then the parties will need to give serious consideration to changing the times for pick up and drop off (e.g. so that it occurs at 6.00pm rather than 5.00pm on Friday) or being prepared to allow some flexibility with the times of pick up and drop off to suit the father’s work arrangements. The mother in particular will need to set aside her previous stance that orders must be rigidly adhered to regardless of any change in circumstances and be prepared to consider solutions.
For all of the above reasons the orders shall be as set out at the beginning of this judgment.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 3 March 2010
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